IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) WP(C) 1140/2015 & WP(C) 2945/2015. Sri Vidyut Bikash Bora

Transcription

1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) WP(C) 1140/2015 & WP(C) 2945/2015 Sri Vidyut Bikash Bora -Vs-...Petitioner M/s. Indian Oil Corporation Ltd. and others....respondents. For the Petitioner : Mr. P.J. Saikia, Adv. For the Respondents : Mr. M.K. Choudhury, Sr. Adv. Ms. A. Choudhury, Adv. Mr. A. Chakraborty, GA, Assam. Mr. T.J. Mahanta, Sr. Adv, Mr. P.P. Dutta, Adv. BEFORE THE HON BLE MR. JUSTICE SUMAN SHYAM Date of hearing and judgement : 01/06/2017 JUDGEMENT AND ORDER (ORAL) Heard Mr. P.J. Saikia, learned counsel appearing for the writ petitioner. Also heard Mr. M.K. Choudhury, learned senior counsel appearing for respondent nos. 1, 2 and 3. Mr. A. Chakraborty, learned Government Advocate, Assam appears for respondent nos. 4 and 5 whereas as Mr. T.J. Mahanta, learned senior counsel appears for respondent no. 6. WP(C) 1140 & 2945/2015 dated Page 1 of 13

2 2. By filing these writ petitions, the petitioner has challenged the decision of the IOCL authorities to award the LPG distributorship under the Rajiv Gandhi Gramin LPG Bitarak scheme in favour of the respondent no. 6. Since both these writ petitions raises common question of facts and law, hence, the same are being disposed of by this common order. The facts in WP(C) 2945/2015 are being referred to as the lead case. 3. The respondent no.1, IOCL had published an advertisement dated 29/12/2013 in the vernacular daily newspaper Asomiya Pratidin inviting applications for appointment of LPG distributors under the Rajiv Gandhi Gramin LPG Bitarak scheme (hereinafter referred to as RGGLB) for as many as 59 different locations including Nowsolia Pathar Gaon under Uttar Kamarbandha Gaon Panchayat of Golaghat Revenue Circle. The advertisement notice dated 29/12/2013 had inter-alia mentioned that the selection of the distributors would be made on the basis of draw of lots from amongst the permanent residents of the Gaon Panchayat or from a permanent resident of the Revenue Circle for which the advertisement has been issued. The applicants were required to submit a Permanent Residence Certificate/ Standard Residence Certificate as per Appendix C. The last date of submission of applications was fixed on 30/01/ In response to the said advertisement, the writ petitioner and the respondent no. 6, besides others, had submitted their applications.. In support of his residence proof, the respondent no 6 had submitted certificate issued by the Gaonburah as well as a Standard Residence Certificate dated WP(C) 1140 & 2945/2015 dated Page 2 of 13

3 5. Thereafter, a draw of lots was held in presence of five applicants whereby the respondent no. 6 had emerged as the lucky winner. Taking note of the result of the draw, the IOCL authorities had taken the decision to award the LPG distributorship for Nowsolia Pathar Gaon in favour of respondent no Aggrieved by the decision of the IOCL,on 08/04/2017, the writ petitioner had submitted a complaint before the respondent no. 3 enclosing a copy of the voters list issued by the concerned Election Officer seeking reselection of the awardee on the ground that the respondent no. 6 was neither a resident of Nowsolia Pathar Gaon nor was he a permanent resident under the concerned Gaon Panahayat and, therefore, was not eligible to apply for the LPG distributorship under the scheme. When the respondent no. 3 did not respond to the said complaint, on 14/07/2014 the petitioner submitted another representation before the Deputy Commissioner, Golaghat through the Circle Officer, Golaghat Revenue Circle, for cancellation of the Standard Residence Certificate earlier issued in favour of the respondent no. 6. According to the petitioner, after receipt of the complaint dated 14/07/2014, the respondent no. 4 made a proper enquiry in the matter, where after, it was found that the respondent no. 6 was not a resident of Nowsolia Pathar Gaon of Uttar Kamarbandha Gaon Panchayat. As such, an order was issued by the Deputy Commissioner on 18/09/2014 cancelling the Standard Residence Certificate earlier issued in favour of the respondent no. 6. Accordingly, a communication dated 19/09/2014 was issued by the Additional Deputy Commissioner, Golaghat intimating the Gaonbura (village headman) about the said fact. Based on the order dated 18/09/2014, the respondent no. 5 had also issued another order WP(C) 1140 & 2945/2015 dated Page 3 of 13

4 dated 22/09/2014 cancelling the Standard Residence Certificate dated 28/02/2014 issued in favour of the respondent no The respondent no. 6 had challenged the orders dated 18/09/2014 and 22/09/2014 cancelling his Standard Residence Certificate dated 28/02/2014 by filing WP(C) No. 5585/2014 before this Court inter-alia on the ground that the orders were passed without affording him an opportunity of being heard. Holding that impugned orders were passed in total disregard of the principles of natural justice, by order dated 02/02/2015 passed in WP(C) No. 5585/2014, the learned single judge had set aside the order dated 22/09/2014 at the stage of motion hearing. 8. Taking note of the order dated 02/02/2015 passed by this Court, the respondent no. 5 had issued an order dated 27/04/2015 restoring the Standard Residence Certificate dated 28/02/2014 which was earlier cancelled by the order dated 22/09/ It is the case of the petitioner that since he was not made a party in WP(C) 5585/2014, hence, he was not aware of the order dated 02/02/2015. When the respondent no. 3 did not cancel the selection of the respondent no. 6 despite cancellation of the Standard Residence Certificate, the petitioner had approached this Court by filing WP(C) No. 1140/2015, inter-alia, praying for a direction to cancel the selection of respondent no. 6 for appointment as an LPG Distributor under RGGLB scheme for the location Nowsolia Pathar Gaon. On 11/03/2015, this Court while issuing notice of motion in WP(C) 1140/2015, had passed an interim order restraining the respondent authorities from issuing any Letter of Intent (LoI) in favour of respondent no. 6. WP(C) 1140 & 2945/2015 dated Page 4 of 13

5 10. It is the further case of the petitioner that in the counter affidavit filed by the respondent nos. 1, 2 and 3, a copy of the order dated 02/02/2015 passed in WP(C) No. 5585/2013 was enclosed. It was only on receipt of a copy of the counter-affidavit that the petitioner became aware of the order dated 02/02/2015 for the first time. As such, the petitioner had preferred a review application bearing no. 68/2015 seeking review of the order dated 02/02/2015, which was rejected by the learned Single Judge by order dated 17/11/2016. A Writ Appeal along with an application for delay condonation was, therefore, preferred by the petitioner against the order dated 02/02/2015. By order dated 26/05/2017 passed in IA(C) No. 658/2017, the Division Bench had rejected the delay condonation application filed by the petitioner by holding that the petitioner was neither a necessary party nor a proper party to the proceeding and, therefore, prayer for condonation of delay of 636 days was not accepted by the Court. Consequently, the writ appeal also stood dismissed. 11. In the meantime, the respondent no. 3 had issued letter dated 17/04/2015 communicating the decision of the IOCL authorities rejecting the complaint dated 08/07/2014 made by the petitioner to the effect that the respondent no. 6 was not a permanent residence of the Nowsolia Pathar Gaon. Aggrieved by the order dated 17/04/2015, the petitioner had filed the second writ petition numbered and registered as WP(C) No. 2945/2015 with a prayer for setting aside the order dated 17/04/ After the dismissal of the IA(C) 658/2017 and the connected writ appeal, the petitioner has filed a third Writ Petition numbered and registered as WP(C) 3251/2017 assailing the order dated 27/04/2015 issued by the Circle Officer, WP(C) 1140 & 2945/2015 dated Page 5 of 13

6 Golaghat Revenue Circle by means of which the Standard Residence Certificate of the respondent no 6 had been restored. In the said writ petition a challenge has also been made to the Standard Residence Certificate dated 28/02/2014 issued in favour of the respondent no. 6. Notice was issued by this court in W.P.(c) No 3251 of 2017 by order dated and the said writ petition is pending disposal before this court. 13. The respondent nos. 1, 2 and 3 have contested the writ petition by filing joint counter affidavit wherein it has been categorically stated that upon receipt of the complaint made by the writ petitioner, the matter was properly investigated as per the laid down procedure and it was only after the scrutiny of necessary credentials including residential proof submitted by the respondent no. 6, that the complaint of the writ petitioner was rejected by the order dated 17/04/ The respondent no. 6 has also filed counter affidavit inter-alia stating that he had purchased land in the Nowsolia Pathar Gaon under Dakhin Hengera Mouza measuring 10 Bighas 2 Kathas and 5 Lechas well before the selection process was initiated and has been residing there upon by constructing residential house which is numbered as 285-A. In support of his aforesaid contention, the respondent no. 6 has enclosed copies of the electricity bill and other land documents asserting that the respondent no. 6 was in fact a permanent resident of Nowsolia Pathar Gaon under Uttar Kamarbandha Gaon Panchayat. 15. Mr. Saikia, learned counsel for the writ petitioner submits that as per the advertisement notice, an applicant must furnish a Standard Residence WP(C) 1140 & 2945/2015 dated Page 6 of 13

7 Certificate along with the application in order to be eligible to participate in the selection process.according to Mr Saikia, materials on record would go to show that the respondent no. 6 is actually a permanent resident of Bamun Gaon under Dakhin Hengera Mouza and, therefore, he could not have been issued a Standard Residence Certificate showing his place of residence under the Kamarbandha Gaon Panchayat. Taking note of the said fact, the District Administration of Golaghat had cancelled his Standard Residence Certificate which was subsequently restored due to interference made by the Court by order dated 02/02/2015. Mr. Saikia submits that since the Standard Residence Certificate is under challenge in WP(C) 3251/2017, which is pending disposal before this Court, all the three writ petitions should be heard together and until such time, the respondents nos 1,2 and 3 be restrained from issuing the LoI in favour of the respondent no Resisting the aforesaid arguments, Mr. M.K. Choudhury, learned senior counsel appearing for respondent nos. 1, 2 and 3 submits that the IOCL authorities have carried out necessary verification as regards the residence status of the respondent no. 6, where-after, a satisfaction has been reached to the effect that the respondent no. 6 is, in fact, a permanent resident of the Nowsolia Pathar Gaon. The complaint made by the petitioner was rejected by letter dated 17/04/2015 issued after proper verification of the facts and there is no justifiable ground to interfere with the said order. Mr. Choudhury further submits that even if the Residence certificate of the R-6 is ultimately interfered with in any proceeding, even in that case, there is no guarantee that the petitioner would be selected as the LPG Distributor for the said locality. Under WP(C) 1140 & 2945/2015 dated Page 7 of 13

8 such circumstances, submits the learned senior counsel, stalling the appointment process would only cause inconvenience and hardship to the public of the locality who would be deprived of the LPG connections. 17. Mr. Mahanta, learned senior counsel appearing for respondent no. 6 has invited the attention of this Court to the pleadings as well as the documents annexed to the counter affidavit to contend that the parents of his clients are from Bamungaon under Dakhin Hengera Mouza but the respondent no. 6 had purchased his own land and is residing at the Nowsolia Pathar Gaon. Mr. Mahanta submits that the name of the respondent no. 6 has also been entered in the electoral roll of 96, Khumtai LAC which falls under the Kamarbandha Gaon Panchayat area. That apart, submits Mr. Mahanta, there are certificates issued by the competent authorities which would establish that the respondent no. 6 is a permanent resident of the Nowsolia Pathar Gaon. Mr. Mahanta submits that the present writ petitions are vexatious and are liable to be dismissed with exemplary cost. 18. I have considered the submissions made by the learned counsel for the parties and have also gone through the materials available on record. From a reading of Clause 3 (kha) of the advertisement notice dated 29/12/2013 it is clear that in order to be eligible to apply for LPG distributorship under the RGGLB for the location Nowsolia Pathar Gaon under Uttar Kamarbandha Gaon Panchayat, the applicant must be a permanent resident of the Gaon Panchayat or a permanent resident of the concerned Revenue Circle. It is further stipulated that the applicant will have to submit/enclose a Permanent Residence Certificate as per appendix C. WP(C) 1140 & 2945/2015 dated Page 8 of 13

9 19. Clause 8 of the NIT lays down the selection criteria, according to which, a draw of lottery would be held amongst the applicants fulfilling all the criteria including the criteria of permanent residence of the RGGLB location of the concerned Gaon Panchayat. 20. As noted above, the sole ground on which the selection of the respondent no. 6 has been assailed by the petitioner is that the said respondent is not a permanent resident of the Nowsolia Pathar Gaon. But such assertion of the petitioner has been categorically denied by the respondent no 6 in his counter affidavit. In paragraph 6(a) of his counter affidavit, the respondent no. 6 has given the facts and particulars in support of his claim of being a permanent resident of Nowsolia Pathar Gaon. The relevant part is extracted herein below for ready reference :- a. The deponent was born at Bamun Gaon under Dakhin Hengera Mouza of Golaghat Revenue Circle, District Golaghat, Assam. In the year 2010, the present deponent purchased land at Naohalia Pathar Gaon under the same Dakhin Hengera Mouza, Uttar Kamarbandha Gaon Panchayat of the Golaghat Revenue Circle and started residing therein constructing house. The total area of the purchased land are covered by the Patta No. 28, 49, 90, 61 and 64 and Dag No. 294, 284, 281, 289, 291, 293 and 283. The house number of the petitioner s house is 285A and he has also the Electricity connection in his name. In this respect the Circle Officer, Golaghat Revenue Circle issued a certificate on 12/09/2011 and also issued land holding certificate on WP(C) 1140 & 2945/2015 dated Page 9 of 13

10 21. In support of his aforementioned claim, the respondent no. 6 has also annexed certificate issued by the Gaonbura (Village Head Man) of Nowsolia Pathar Gaon dated 15/03/2014 as well as that of Bamun Gaon dated 22/07/2014. A perusal of these document, prima facie, goes to show that the respondent no. 6 is a resident of Nowsolia Pathar Gaon. 22. It further appears from the records that even the name of the respondent no. 6 has been included in the electoral roll pertain to No. 59, Khumtai LAC which falls under the Kamarbandha Gaon Panchayat. The respondent no. 6 has also annexed a copy of the certificate dated 25/07/2014 issued by the office of the Uttar Kamarbandha Gaon Panchayat giving the details of the particulars of the immovable properties owned by him in that locality. The writ petitioner has not filed any rejoinder affidavit disputing the aforesaid averments. 23. After the order dated 02/02/215 was passed by the learned Single Judge, the Permanent Residence Certificate/ Standard Residence Certificate of the petitioner was restored by the order dated 27/04/2015 issued by the Circle Officer and the said certificate is still holding the field. That apart, there are other materials on record to indicate that the IOCL had conducted a proper enquiry and carried out necessary verification to come to a conclusion that the respondent no. 6 is a permanent resident of Nowsolia Pathar Gaon. Under such circumstances, the conclusion reached by the IOCL authorities regarding the residential status of the respondent no 6, in the opinion of this court, cannot be found fault with. WP(C) 1140 & 2945/2015 dated Page 10 of 13

11 24. By referring to the decision of this court rendered in the case of Nandita Das v Bharat Petrleum Corporation Limited & Ors reported in 2015(2) GLT 644, Mr Saikia has made an attempt to convince this court that mere purchase of land would not be sufficient to meet the NIT condition of permanent residence of the Gaon Panchayat area. But in the case in hand the respondent no. 6 has not only produced documents to show that he had purchased land within the Gaon Panchayat area but has also brought on record, materials to prima facie establish that his place of residence was also within the Gaon Panchayat area. That apart, unlike in the case of Nandita Das (supra), in this case, the land had been evidently purchased long before the issuance of the advertisement. Therefore, the ratio of the decision relied upon by Mr. Saikia would not have any application in the facts of the present case. 25. It is true that the Permanent Residence Certificate (PRC) dated 28/02/2014 was issued to the respondent no. 6 after the last date of submission of the application but the tender condition does not create any bar for the applicants to submit such resident certificate on a subsequent date. Mr. Choudhury, learned senior counsel submits that not only the respondent no. 6, there were other applicants also who had subsequently submitted their documents supporting their claim and since the aforesaid opportunity has been equally made available to all the applicants, no prejudice has been caused to any of the applicants. The respondent no 6 has made averments to the effect that the issuance of the PRC got delayed due to official formalities and I do not see any reason to disbelieve the respondent no 6. WP(C) 1140 & 2945/2015 dated Page 11 of 13

12 26. From an examination of the NIT dated 29/12/2013 as well as the materials available on record, I find that the RGGLB scheme had been introduced by the Government primarily for the benefit of the rural masses so as to enable them to avail the facility of LPG cooking gas. The process of selection is admittedly on the basis of draw of lots. Therefore, there is no guarantee that even if the selection in favour of respondent no. 6 was to be set aside, the petitioner would be awarded the LPG distributorship since fresh selection would have to be made again by the draw of lots. 27. An enquiry as to whether the respondent no 6 is a permanent resident of the concerned Gaon Panchayat area or not cannot be made in a writ petition since the determination of such an issue would depend on several disputed question of facts. As long as the Permanent Residence Certificate issued to the respondent no 6 holds the field, the writ petitioner would not have any locus to assail the selection of the respondent no 6 on the ground of residential status nor can he claim to have any right that can be enforced in these writ petitions on such count. 28. In the case of AIR India Ltd. Vs. Cochin International Airport Ltd. and others reported in (2000) 2 SCC 617, the Hon ble Supreme Court has held that the State and its Corporation, instrumentalities and agencies have the public duty to be fair to all concerned and even if some defect is found in the decision making process, Court must exercise its discretionary power under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. In the present case, from the materials on record, I find that the IOCL authorities have resorted to a fair WP(C) 1140 & 2945/2015 dated Page 12 of 13

13 procedure of selection of the distributors. Therefore, the mere fact that the Permanent Residence Certificate was produced by the respondent no. 6 after the last date of submission of the applications cannot be a valid ground to interfere with the selection process. 29. For the reasons stated above, I am of the opinion that the writ petitioner has failed to make out a case warranting interference of this Court. As such, the writ petitions are held to be devoid of any merit and are accordingly dismissed. There would be no order as to costs. Sukhamay JUDGE WP(C) 1140 & 2945/2015 dated Page 13 of 13