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2018 DIGILAW 1063 (GAU)

Jonali Rajbongshi v. Union of India

2018-07-19

UJJAL BHUYAN

body2018
ORDER : Ujjal Bhuyan, J. 1. Heard Mr. K. Sharma, learned counsel for the petitioner; Mr. K.K. Parashar, learned counsel, for respondent No. 1; Mr. P.J. Saikia, learned counsel for respondent Nos. 2 to 6 and Mr. B. Barman, learned counsel for respondent No. 7. 2. By filing this petition under Article 226 of the Constitution of India, petitioner has challenged the legality and correctness of the decision of Bharat Petroleum Corporation Ltd. (BPCL) to appoint respondent No. 7 as LPG distributorship at Kamargaon under Chak-chaka Block in the district of Barpeta under Rajiv Gandhi Gramin LPG Vitarak (RGGLV) scheme and has sought for a direction to respondent Nos. 2 to 6 to award her the distributorship. 3. As would be evident from the above, subject-matter of the writ petition is award of LPG distributorship under the RGGLV at Kamargaon under Chakchaka Block in the district of Barpeta. In this connection, advertisement was issued on 21.02.2013 by the BPCL. Petitioner as well as respondent No. 7 had responded to the said advertisement and had qualified for the draw which was held on 30.1.2014. It appears that following the draw, respondent No. 7 was selected for award of distributorship which is under challenge in the present proceeding. Challenge has been made on the ground that land offered by respondent No. 7 did not belong to him or to his family members or to his parents or to his grandparents which is the eligibility requirement. Therefore, candidature of respondent No. 7 ought to have been rejected but instead of doing that, opportunity was granted to respondent No. 7 to furnish alternative plot of land and after alternative plot of land was furnished by respondent No. 7, it was decided to allot distributorship to him. 4. On the other hand, land offered by the petitioner stands in her name and, therefore, petitioner should have been considered for allotment of LPG distributorship after rejecting the candidature of respondent No. 7. 5. When the writ petition was moved on 24.08.2015, this Court while issuing notice observed that prima facie contention of the petitioner appeared to be correct and thereafter passed an interim order to the effect that no appointment of RGGLV distributorship in respect of Kamargaon under Chakchaka Block in the district of Barpeta should be made without leave of the Court. 6. Respondents have filed their respective affidavits to which petitioner has filed rejoinder. 6. Respondents have filed their respective affidavits to which petitioner has filed rejoinder. 7. Respondent Nos. 2 to 6 have also filed an Interlocutory Application for vacation of the aforesaid interim order dated 24.08.2018 which has been registered as IA(C) No. 1903/2017. However, Mr. Saikia, learned counsel, representing respondent Nos. 2 to 6 submitted that instead of the IA, entire writ petition may be heard whereafter writ petition has been heard. 8. The brochure for selection of RGGLV distributorship, particularly, Clause-5 thereof, lays down the mode of selection. The applicant must have plot of land suitable for setting up distributorship. In case, an applicant has more than one suitable plot of land for construction of godown for storage of 5000 kg of LPG in cylinders or ready LPG cylinder godown of 5000 kg capacity, then details of the same can also be provided in the application. 9. According to the petitioner, the land must be in the name of the applicant or in the name of members of his family unit or parents or grandparents, both maternal and paternal. In so far petitioner is concerned, the land offered by the petitioner belonged to herself. On the other hand, land offered by respondent No. 7 belonged to the younger brother of paternal grandfather which does not fulfill the eligibility requirement. 10. Responding to the above contention of the petitioner, both Mr. Saikia and Mr. Barman submit that if a land mentioned by an applicant in his application is found not suitable for godown and the applicant has offered another plot of land, it would be in order to consider the alternative plot of land if it is in the name of the applicant/member of the applicant's family unit. It is contended that offer of land by an applicant is not a mandatory condition but directory because discretion is vested on the authorities to consider the alternate plot of land that may be offered by an applicant. 11. In this connection, Mr. Barman has placed reliance on a decision of the Supreme Court in K. Vinod Kumar Vs. S. Palanisamy, AIR 2003 SC 3171 . 12. Before proceeding further, it would be useful to note that respondents have not denied that initial land offered by respondent No. 7 belonged to the younger brother of his paternal grandfather which is not as per the laid down criteria. 13. S. Palanisamy, AIR 2003 SC 3171 . 12. Before proceeding further, it would be useful to note that respondents have not denied that initial land offered by respondent No. 7 belonged to the younger brother of his paternal grandfather which is not as per the laid down criteria. 13. A careful perusal of the decision of the Supreme Court in K. Vinod Kumar (supra) would go to show that in that case, selection of the distributor was challenged on the ground that there was failure on the part of the selected candidate to give particulars of the land to be given for distributorship. After examining the terms and conditions of eligibility, Supreme Court held that requirement of furnishing particulars of the land did not appear to be mandatory. Elaborating further, Supreme Court observed that purpose of furnishing particulars of land in the application was to enable a determination as to whether the specified land would accommodate the godown facilities and distributorship arrangements from a commercial angle. It was held that this requirement was mandatory but satisfying the requirement at the stage of making the application was only directory because particulars of such land could be made available even subsequent to filing of the application or may be even subsequent to the selection. 14. That is not the position in the instant case. Offering a plot of land by the applicant either belonging to himself or to the members of the family unit or to parents or to grandparents (both paternal and maternal) is an essential condition Whether such land would be suitable for setting up godown necessary for the distributorship would be subject to further scrutiny. If it is found to be not suitable, then an opportunity is to be granted to the applicant to provide alternate plot of land which is suitable for the purpose. This opportunity to provide alternate plot of land would arise only if the land belongs to the applicant or to the members of his family or to parents or grandparents. If land offered does not belong to either of the above categories, then there is non-fulfillment of the eligibility criteria. In such a situation, question of providing further opportunity to the applicant to provide suitable land would not arise. 15. This position has been made clear by a Single Bench decision of this Court in Gopal Das Vs. If land offered does not belong to either of the above categories, then there is non-fulfillment of the eligibility criteria. In such a situation, question of providing further opportunity to the applicant to provide suitable land would not arise. 15. This position has been made clear by a Single Bench decision of this Court in Gopal Das Vs. Indian Oil Corporation Limited, AIR 2017 Gauhati 7. 16. In that case, award of LPG distributorship to the selected person was challenged on the ground that the offered land was not within the demarcated area whereafter respondent authorities had provided opportunity to the selected candidate to provide another plot of land within the demarcated area. In the facts of that case, it was held that respondent authority can ask for an alternate plot of land only in the event the plot of land is not found suitable. Suitability will mean that land offered by the applicant is within the advertised location or locality but for some reason or the other, the same is not found suitable. Respondent authority cannot ask for an alternate plot of land if the land offered in the application is not within the advertised location, further clarifying that if the plot of land did not meet the required dimension, application could not be considered. 17. Having regard to the discussions made above, I am of the considered opinion that selection of respondent No. 7 was not justified since the initial plot of land offered by him did not meet the required criteria and is therefore liable to be interfered with. Accordingly, selection of respondent No. 7 is set aside. 18. Ordinarily, respondent authorities would have had to hold draw of lot with the remaining shortlisted candidates for allotment of distributorship but in the present case, after disqualification of respondent No. 7, Court has been informed that petitioner is the only valid candidate. In such circumstances, respondent-authorities, i.e., respondent Nos. 2 to 6 shall take steps for awarding LPG distributorship under the RGGLV at Kamargaon under Chakchaka Block in the district of Barpeta in favour of the petitioner. 19. Writ petition is accordingly allowed. 20. No costs.