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2018 DIGILAW 130 (CAL)

Ranjit Kumar Rishi v. Union of India

2018-01-17

DIPANKAR DATTA, RAJASEKHAR MANTHA

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JUDGMENT : RAJASEKHAR MANTHA, J. 1. This appeal is directed against a judgment and order dated 19th November, 2015 passed in W.P. No.23362 (W) of 2013. 2. The facts as have emerged from the pleadings are inter alia as follows:- The writ petitioner/appellant had applied for LPG Distributorship advertised by the respondent No.2 Indian Oil Corporation (I.O.C.) under the Rajiv Gandhi Gramin LPG Vitrak Scheme (RGGLV), pursuant to an advertisement published on 29th February, 2012 in the Anandabazar Patrika vernacular newspaper. The portion of the advertisement relevant to the appellant is translated in English and set out hereinbelow. RGGLV Name of place Name of Panchayat Name of Block Name of District Category Rukunpur Pratappur Rukunpur Hariharpara Murshidabad Open 3. In the appellant's application, as stated above, he offered two plots of land for a godown/storing place of LPG gas units. The said plots of land are Plot Nos.11938 and 11939, LR Khatian No.7036, Mouza-Rukunpur, J.L.No.30, under Rukunpur Gram Panchayat, P.S. Hariharpara, District-Murshidabad in the State of West Bengal. 4. The writ petitioner succeeded in the lucky draw and emerged as the first of the three candidates for such distributorship. 5. The residential certificate furnished by the appellant to the I.O.C. was sent for verification and was duly verified by the Block Land and Land Reforms Office, Hariharpara, Murshidabad vide memo No.662/BL & LRO/HP dated 05.11.2012. 6. Further the Rukunpur Gram Panchayat also issued a certificate to the effect that the appellant was a resident of Rukunpur Village falling under Hariharpara Police Station in District Murshidabad and that the Pradhan of the Gram Panchayat knows the appellant personally. 7. However, at the instance of the 5th respondent, also a contender for the said distributorship, the BL & LRO of Hariharpara by letter dated 26th November, 2012 submitted to the (I.O.C.) that the plot nos. offered by the appellant for housing the godown as being 11938 and 11939 under Khatian No.7036 are situated in Mouza Rukunpur but not in village Rukunpur. He further informed that the said two plots are in a village called Jhanjha. The said information was obtained by the 5th respondent under the Right to Information Act, 2005. 8. offered by the appellant for housing the godown as being 11938 and 11939 under Khatian No.7036 are situated in Mouza Rukunpur but not in village Rukunpur. He further informed that the said two plots are in a village called Jhanjha. The said information was obtained by the 5th respondent under the Right to Information Act, 2005. 8. By a further letter dated 12th March, 2013, the BL & LRO gave a third version of the place of residence of the appellant stating that his office is only concerned with a unit of measurement of land and identification thereof called 'Mouza'. He further stated that his office is not competent to identify a village. He further clarified that his letter dated 5th November, 2012 should be ignored. 9. The Rukunpur Gram Panchayat however stated in a letter dated 18th March, 2013 that the two plots of land of the writ petitioner are in an area called Jhanjha Mathpara, and situate and lying at village and Mouza Rukunpur under Rukunpur Gram Panchayat in the District of Murshidabad, West Bengal. 10. On the basis of the above the respondent No.2 (I.O.C.) cancelled the candidature of the appellant for RGGLV Scheme Distributorship for the location at Rukunpur/Pratappur. The said letter of cancellation after correction was finally issued on the 5th July, 2013. 11. When the writ petition was moved, the learned Single Bench noticing the contradiction in the two communications dated 26th November, 2012 and 12th March, 2013 issued by the BL & LRO, called for a report from the District Magistrate, Murshidabad to indicate as to whether the appellant's plots of land fell within village Rukunpur or not. A report was duly filed by the District Magistrate before the learned Single Bench dated the 25th day of November, 2013 being Memo No.457/H.C./R.M./E.N. The report inter alia indicates that the appellant's plots of land are in Mouza Rukunpur Jurisdiction List No.30 but in village Jhanjha and not in village Rukunpur. 12. The learned Single Judge discussed the definition of Gram, Gram Panchayat and Mouza under the Provisions of the West Bengal Panchayat Act, 1973 and the definition of village boundary under the West Bengal Land and Land Reforms Manual, 1991. The learned Single Judge also referred to Article 243G of the Constitution of India. 12. The learned Single Judge discussed the definition of Gram, Gram Panchayat and Mouza under the Provisions of the West Bengal Panchayat Act, 1973 and the definition of village boundary under the West Bengal Land and Land Reforms Manual, 1991. The learned Single Judge also referred to Article 243G of the Constitution of India. His Lordship thereafter concluded that the said definition would have little or no bearing on the definition of location under the RGGLV Scheme. 13. From an affidavit filed by the Indian Oil Corporation it transpires in no uncertain terms that the locational requirements under the scheme was as follows:- "Location for setting up of Rajiv Gandhi LPG Vitrak (RGGLV) are identified broadly based on potential of average monthly sale of 600 LPG cylinders of 14.2 kg and 1800 customers with monthly per capita consumption of about 5 kg. The assessment of refill sale potential is based on several factors including population, population growth rate, economic prosperity of the location and the distance from the existing nearest distributor. Setting up of RGGLV at the identified location is a business proposition and has normal business risks and does not guarantee any assured returns or profits or any quantum of refill sale. It is extremely important to note that proprietor of RGGLV himself operates it and if need be he may employee one person for assistance." 14. Considering the location factor explained under the RGGLV Scheme set out hereinabove as also the report of the District Magistrate dated 25th November, 2013(supra) the learned Single Bench came to the conclusion that the plots of land offered by the appellant did not fall within Rukunpur village, and the writ petition was dismissed. 15. The appellant aggrieved by the aforesaid order of dismissal is before us by way of Letters Patent appeal. 16. A coordinate Bench of this Court considering the contradictions in the report of the District Magistrate and the BL & LRO before the learned Single Bench called for a fresh report vide order dated 20th July, 2017. The office of the District Magistrate and Collector vide report dated 12th September, 2017 reiterated that the two plots being plot nos.11938 and 11939 are under Mouza Rukunpur, J.L. No.30 and are located in village Jhanjha, Jhanjha being one of twelve villages falling under Rukunpur Gram Panchayat. The office of the District Magistrate and Collector vide report dated 12th September, 2017 reiterated that the two plots being plot nos.11938 and 11939 are under Mouza Rukunpur, J.L. No.30 and are located in village Jhanjha, Jhanjha being one of twelve villages falling under Rukunpur Gram Panchayat. However, the supporting documents to the report of the District Magistrate dated 12.09.2017 did not indicate as to whether the plots fell within village Rukunpur or village Jhanjha. 17. It also transpired to another Coordinate Bench that the Pradhan of the Rukunpur Gram Panchayat vide letter dated 1st September, 2017 had stated that Village Jhanjha fell under a separate Mouza called Pratappur and not Rukunpur Mouza. 18. Pointing out the aforesaid discrepancy the said Bench called for a clarification from the office of the District Magistrate, Murshidabad in its order dated 27th November, 2017. 19. Two separate communications dated 4th December, 2017 addressed by the BL & LRO Hariharpara to B.D.O. Hariharpara and another letter addressed to the A.D.M. and D.L. & LRO, Murshidabad dated 5th December, 2017 placed by the D.M. Murshidabad, emerged before the Court. The letter dated 5th December, 2017 stated that Mouza bearing J.L. No.52 is that of Jhanjha but the two plots have J.L. Nos. 30 and are not under J.L. No.52 or Pratappur Mouza being J.L. No.29. 20. A further letter dated 5th December, 2017 also as received by the D.M. Murshidabad emerged from Rukunpur Gram Panchayat and was countersigned by B.D.O., Hariharpara, Murshidabad. It transpires that Mouza Rukunpur had J.L. No.30 and Mouza Pratappur had J.L.No.29. The Rukunpur Gram Panchayat had twelve villages under it. Five of such villages were under Mouza Pratappur having J.L. No.29, and seven other villages including Rukunpur village under J.L. No.30. 21. In a final report issued by the District Magistrate, Murshidabad also called for by the order dated 27th November, 2017 the A.D.M./DL & LRO, Murshidabad furnished a Jurisdiction List (J.L.) of villages under Hariharpara Police Station. From the aforesaid list, it transpires that Rukunpur was a village having Jurisdiction List (J.L.No.30) under Hariharpara Police Station and Jhanjha was also another village having Jurisdiction List (J.L. No.52) under the same Police Station. From the aforesaid list, it transpires that Rukunpur was a village having Jurisdiction List (J.L.No.30) under Hariharpara Police Station and Jhanjha was also another village having Jurisdiction List (J.L. No.52) under the same Police Station. A record-of-rights was also submitted by the appellant issued by the Government of West Bengal, office of the BL & LRO which indicated that the two plots offered by the appellant were situated at Block and P.S. Hariharpara and under Mouza Rukunpur. 22. In the said final report dated 6th December, 2017 the said A.D.M. and D.L. & L.R.O. stated as follows:- "The plots of land, i.e. plot nos.11938 and 11939, offered by the applicant are located in the mouza-Rukunpur, J.L. No.30. As per the jurisdiction list (J.L.) of villages under the jurisdictional control of Hariharpara Police Station there is a separate mouza-Jhanjha, J.L. No.52, comprising village Jhanjha. But plots of land offered by the applicant are not located in that mouza-Jhanjha, as last plot number of mouza - Jhanjha, J.L. No.52 is 778. 23. Sections 2(10), 2(11) and 2 (13) of the West Bengal Gram Panchayat Act, 1973 define Gram, Gram Panchayat and Mouza as follows :- "2.(10) "Gram" means an area referred to in section 3; (11) "Gram Panchayat" means a body consisting of persons registered in the electoral rolls pertaining to a Gram declared as such under sub-section (1) of section 3; (13) "Mouza" means an area defined, surveyed and recorded as such in the revenue record of a district and referred to in clause (g) of Article 243 of the Constitution of India notification for specifying a village," Section 3 under Chapter 2 of the 1973 Act, the word "Gram" has been defined as follows:- "3.Gram.- (1) The State Government may, by notification, declare for the purposes of this Act any mauza or part of a mauza or group of contiguous mauzas or parts thereof to be a Gram: Provided that any group of mauzas or parts thereof, when they are not contiguous or have no common boundaries and are separated by an area to which this Act does not extend or in which the remaining sections of this Act referred to in sub-section (3) of section 1 have not come into force, may also be declared to be a Gram. (2) The notification under sub-section (1) shall specify the name of the Gram by which it shall be known and shall specify the local limits of such Gram." 24. Part 423 of the West Bengal Land & Land Reforms Manual, 1991 defines village boundary as follows:- "423. Village boundary.- A mouza shown as such in a map prepared and published at the time when record-of rights of such mouza was last published under the law shall ordinarily be adopted as the unit of survey in any subsequent revision of such map and record of rights." 25. A plain reading of the above sections indicates that the expression "Village" in English and word "Gram" in Bengali are synonymous. It further transpires that a village generally comprises of one Mouza. There are instances where a village can also comprise of either a part of a Mouza or group of contiguous Mouzas or parts thereof. 26. We are therefore only concerned with one Mouza here called Mouza Rukunpur. The reports of the District Magistrate that have emerged in course of this appeal therefore in no uncertain terms indicate as follows: - The two plots of land of the appellant being No.11938 and 11939 under Khatian No.7036 and under Mouza Rukunpur. The name of the village where the two plots are located is 'Rukunpur'. The Gram Panchayat within which Rukunpur village falls is comprise of twelve villages called Rukunpur Gram Panchayat. The said two plots also fall under J.L. No.30 i.e. Rukunpur in terms of the jurisdiction list under Hariharpara Police Station. The said two plots cannot fall under village Jhanjha as the last plot number in village Jhanjha having J.L. No.52 is 778. 27. The appellant's two plots therefore undisputedly fall under Rukunpur village as also Rukunpur Mouza, Hariharpara Block, District Murshidabad, strictly in terms of the locational requirements specified in the advertisement dated 29th February, 2012 referred to hereinabove. For the sake of convenience the said requirements are set out herein below once again:- RGGLV Name of place Name of Panchayat Name of Block Name of District Category Rukunpur Pratappur Rukunpur Hariharpara Murshidabad Open 28. We record having heard Mr. Mukhopadhyay, learned advocate for the 5th respondent and perused the written note of argument filed by him but express our inability to be persuaded to take a different view. 29. The impugned order is therefore liable to be set aside. We record having heard Mr. Mukhopadhyay, learned advocate for the 5th respondent and perused the written note of argument filed by him but express our inability to be persuaded to take a different view. 29. The impugned order is therefore liable to be set aside. However one cannot lose sight of the fact that the learned Single Judge had delivered His lordship's view on the basis of an incorrect report submitted by the District Magistrate. The judgment would not have, as such, called for interference by this Bench but for such incorrect report. Instead of remanding the matter back to the learned Single Judge, we chose to deal with the appellant's case ourselves, on the prayer of the parties. 30. The impugned judgment and order dated 19.11.2015 passed in W.P.No.23362(W) of 2013 is therefore set aside and the appeal is allowed. There shall however be no order as to costs. 31. I.O.C. shall be at liberty to take further action in accordance with law. Dipankar Datta, J. - I agree. Later: 32. After the judgment is delivered, Mr. Mukhopadhyay, learned advocate appearing for the private respondent prays for stay of operation of this order. 33. The same is considered and declined.