WRIT APPEAL NO.45 OF 2017

Transcription

1 THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, ARUNACHAL PRADESH AND MIZORAM) WRIT APPEAL NO.45 OF 2017 Appellant: Sri Pradip Bhattacharjee S/o late Jyotish Bhattacharjee R/o Banamali Road, Ward No.14 Karimganj Town, District Karimganj Assam, PIN , Mobile No Respondents: 1. The Indian Oil Corporation Limited, Represented by its General Manager, North East Integrated State Office, Noonmati, Guwahati The General Manager North East Integrated State Office Noonmati, Guwahati Senior Area Manager, Indian Oil Corporation Ltd. Integrated Indane Area Office, Jagannath Apartment, Hospital Road Silchar-5, District Cachar Assam 4. Shri Gopal Das, S/o Late Subal Chandra Das R/o Banamali Road, Saha Villa Lane Ward No.14, Karimganj Town PO & District-Karimganj, Assam BEFORE HON BLE THE CHIEF JUSTICE MR. AJIT SINGH HON BLE MR. JUSTICE MANOJIT BHUYAN For the Appellant Mr. B. Sinha and Mr. S. Saikia, learned counsel for the appellant. For the Respondents Mr. M.K. Choudhury, learned senior counsel, assisted by Mr.P Bharadwaj, learned counsel for Respondent Nos.1,2 and 3 and Mr.KN Choudhury, learned senior counsel, assisted by Mr. HR Choudhury, learned counsel for Respondent No.4. Date of hearing & Judgment Page 1 of 7

2 (Ajit Singh, C.J.) JUDGMENT AND ORDER This intra court appeal is directed against the order dated passed by the learned Single Judge of this High Court whereby he has allowed WP(C) 4374/2015 of Respondent No.4 Gopal Das. 2. The short point which calls for our consideration is whether the Indian Oil Corporation (in short IOC ) was justified in giving an opportunity to the appellant to offer an alternative plot of land after it was found that the plot of land offered by him in the application for showroom was not located in the advertised location or locality. Another question which requires consideration is whether the land offered in the application was located in the advertised location or locality. The learned Single Judge by the impugned order has already held that the approach of IOC asking for an alternative plot of land from the appellant was wholly misconceived and quashed his selection for distributorship of Liquefied Petroleum Gas (LPG). But since the aggrieved appellant has filed this appeal, we shall re-examine the issue. There is however no adjudication by the learned Single Judge on the issue whether the land offered in the application by him was situated in the advertised location or locality. 3. On , IOC issued an advertisement inviting applications for selection of LPG distributorship at Karimganj Town under urban market type category. The last date for submission of application was According to the advertisement, a showroom of minimum dimension of 3ms X 4.5ms, as per the standard layout, had to be made in a shop/land located in the advertised location or locality and it should be easily accessible to general public through a suitable approach road. Also for the purposes of godown, the advertisement stated that the applicants should own a plot of land of minimum dimension of 25ms X 30ms (within 15 Kilometers from municipal/ town/ village limits of the location offered in the same State). Clause 4 of the advertisement further disclosed that detailed guidelines on eligibility, infrastructure requirements of land for Page 2 of 7

3 LPG godown, showroom, infrastructure for Home delivery of cylinders etc. along with the details of selection process were given in the Brochure, which could be collected personally or be downloaded from the website. This means that the IOC can make selection of distributorship only in a manner provided in the Brochure which is therefore also named as Brochure on Guidelines for Selection of Regular LPG Distributors, May, 2013 (for short, Brochure of May, 2013 ). 4. Clause 6.1 (viii) of the Brochure of May, 2013 provides that the applicant should own a suitable shop of minimum size 3ms x 4.5ms in dimension or a plot of land for construction of showroom of minimum size 3ms x 4.5ms as on the last date for submission of application as specified in the advertisement or corrigendum (if any) at the advertised location or locality mentioned in the advertisement. This Clause also says that the shop/plot of land should be easily accessible to general public through a suitable approach road and that if the applicant was having more than one shop or a plot of land for construction of showroom as on the last date for submission of application at the advertised location or locality, the details of the same can be provided in the application. 5. One another Brochure on Guidelines for Selection of Regular LPG Distributors was introduced in August, However, Clause 6.1 (viii) of both the Brochures are same and they clearly provide that applicant should own a suitable shop or a plot of land at the advertised location or locality mentioned in the advertisement and if the candidate had more than one shop or plot of land at the advertised location of locality, he may give the details of same in the application. 6. The IOC shortlisted three applicants including appellant and respondent No.4 for selection of LPG Distributorship. The selection was made by draw of lots in which appellant was selected. Aggrieved with the selection of appellant, Respondent No.4 made a complaint to the IOC stating that the land offered by him for showroom did not fall in the Karimganj Town. On enquiry, the IOC also found that the land offered by Page 3 of 7

4 the appellant in fact did not fall at the advertised location or locality and yet by communication dated rejected the complaint on the ground that on an opportunity given to him another suitable land was offered which was accepted. This decision of the IOC was based on Policy Manual for Regular Distributorship May, 2013 which says that in case the land mentioned in the application by the applicant for godown/showroom is not found to be suitable and if the applicant had any alternate land as per norms with the deed of registration on or before the last date for submission of application as specified in the advertisement or corrigendum (if any), the same can be considered. 7. Respondent No.4 finally challenged the decision of IOC by filing WP(C) 4374/2015 on the ground that it had no authority for giving an opportunity to the appellant to offer another land/plot for distributorship once it was found that the land offered in the application for showroom was not situated in the advertised location or locality. Respondent No.4 also averred that Policy Manual for Selection of Regular LPG Distributorship May, 2013 was restricted to the internal use of the Company and the same could not have been resorted to, as the selection could be made only in accordance with the manner provided in the Brochures which held the field on the date of advertisement or till the last date for making application. In reply, the IOC defended its decision of giving an opportunity to the appellant for offering another land/plot despite the fact that land offered by him in the application was not found to be situated in the advertised location or locality. The appellant adopted the stand taken by the IOC and even took the plea that the land offered in the application was situated in the advertised location or locality. 8. The learned Single Judge after carefully examining the process of selection for LPG Distributorship as provided in the Brochures which were holding the field till the last date of making application has quashed decision of the IOC asking for an alternate plot of land from the appellant on the ground that it was wholly misconceived. According to the learned Single Judge the IOC could have asked for an alternate plot of land from Page 4 of 7

5 the appellant only if the land offered in his application was in the advertised location or locality and was not found to be suitable. On these findings, the learned single judge has also quashed the selection of appellant for the distributorship in question. As already mentioned above, the learned Single Judge did not advert on the issue whether the land offered in the application was situated in the advertised location or locality. The appellant has therefore filed the present appeal, whereas the IOC is satisfied with the findings of the learned Single Judge that its decision to ask for alternate land from the appellant was absolutely misconceived. Had the IOC not been satisfied, it too would have filed an appeal challenging the findings of the learned Single Judge. 9. In Dutta Associates Pvt. Ltd. vs. Indo Merchantiles Pvt. Ltd, (1997) 1 SCC 53, the Supreme Court has held that whatever procedure is proposed to be followed in accepting the tender must be clearly stated in the tender notice and the consideration of the tenders received and the procedure to be followed in the matter of acceptance of a tender should be transparent, fair and open. Therefore, the IOC could follow only that procedure in the selection of LPG distributorship which was stated in the advertisement. But the procedure followed by it in selecting the appellant was not stated in the advertisement. The learned Single Judge has therefore rightly quashed his selection. 10. As noticed above, the advertisement stated that selection for the distributorship shall be made in accordance with the procedure prescribed in the Brochures. The Brochures which admittedly held the field on the last date of making application for distributorship were of May, 2013 and August,2013. Both these Brochures provided that in case the applicant had more than one plot of land at the advertised location or locality for construction of showroom as on the late date of application as specified in the advertisement, the details of the same may also be stated in the application. The appellant in his application mentioned about only one plot. The Brochures did not contain any provision authorising the IOC to ask for another plot after the plot mentioned in the application was not Page 5 of 7

6 found to be situated in the advertised location or locality. And on a complaint made by respondent No.4, the IOC found that the plot offered by the appellant in the application was not situated in the advertised location i.e. Karimganj Town. This finding of IOC also had the support of letter dated of the Karimganj Municipal Board as well as letter dated of Sarifnagar Gaon Panchayat. Both these letters confirm that the land offered in the application was not situated in the municipal area of Karimganj. The IOC, therefore, in all fairness, in the absence of any other plot offered in the application ought to have rejected the candidature of the appellant. But, instead, it relying upon the Policy Manual for Selection of Regular LPG Distributorship May, 2013, which was nowhere mentioned in the advertisement, gave the option to the appellant to offer another plot which is not permissible. Interestingly, the appellant was also informed by IOC vide letter dated that after investigation the plot of land offered by him was not found to be in the advertised location and he did not challenge that finding before any forum. In reply, he merely stated that the land offered was situated in the advertised location and offered another land in the Karimganj Town. Since the appellant did not challenge the finding of IOC before any forum, the learned Single Judge was of the view that no adjudication was called for in that regard. 11. Pursuant to our direction, the Additional Senior Government Advocate, Assam has produced certificates dated and of the Deputy Director, Town and Country Planning, Karimganj and Director, Municipal Administration Department respectively. In both these certificates the authorities have stated in one voice that the land offered by the appellant on the date of application was not situated in Karimganj Town. According to these certificates, the land offered was in rural area, which is outside Karimganj Municipal Board. We, therefore, have no hesitation in agreeing with the findings of the IOC that the land offered by the appellant was not situated in the advertised location or locality as the selection of LPG distributorship was under urban market Page 6 of 7

7 type category i.e. Karimganj Town. Also under the provisions of Policy Manual for Selection of Regular LPG Distributorship May, 2013, the IOC could have asked for an alternate plot of land from the appellant only if the plot of land offered in the application was not found to be suitable for showroom provided the same was situated in the advertised location or locality. But, as already seen above, the plot of land offered by the appellant in the application was found to be outside the advertised location and therefore, suitability or non-suitability had no relevance to ask for an offer of alternate plot of land. 12. For these reasons, we find no merit in the appeal. It is accordingly dismissed. JUDGE CHIEF JUSTICE skd Page 7 of 7