Writ petition challenging the selection of Sumitra Choudhury as LPG distributor in Ganjam district. Bench interpreted guidelines to show road verification occurs post-selection via LOI. Petitioner plea dismissed for lack of merit and evidence.
Writ petition dismissed. Interim order in Misc. Case No.5839 of 2017 vacated.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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HIGH COURT OF ORISSA: CUTTACK
W.P.(C) No.6477 of 2017
In the matter of an application under Articles 226 and 227 of Constitution of India.
Sanjukta Kumari Devi ……. Petitioner -Versus-
Bharat Petroleum Corporation Ltd. and two others ……. Opp. Parties
For Petitioner : M/s. Umesh Chandra Behura & P.Dutta
---------------------------Judgment delivered by Virtual Mode on 14.10.2020
P R E S E N T:
THE HONOURABLE SHRI JUSTICE K.R. MOHAPATRA
O R D E R
K.R.Mohapatra, J Petitioner, in this writ petition, assails the
selection of opposite party No.3-Sumitra Choudhury as Distributor of LPG of opposite party No.1-Bharat Petroleum Corporation Limited (for short, ‘Corporation’) for Subarnapur
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under Jaradagada Grama Panchayat in the district of Ganjam.
2. Pursuant to an advertisement dated 16.11.2016 (Annexure-1) published by opposite party No.1 in daily newspaper, petitioner, opposite party No.3 along with eight others applied for LPG Distributorship, in which opposite party No.3 was selected for being appointed as such. It reveals from the averments made in the writ petition that Unified Guidelines for selection of LPG Distributor of existing Oil Companies in India (Annexure-2) (for short, ‘Guidelines’) has been published in July, 2016 and the selection was made in accordance with the said Guidelines (Annexure-2). The ‘Mode of Selection’ of LPG Distributorship is prescribed in Para-6 of the Guidelines, which reads as follows:-
“6. MODE OF SELECTION
Selection for LPG Distributorship will be done by inviting applications through advertisement under appropriate category in newspapers.
Selection of LPG distributor for an advertised location will be done by draw of lots from all the eligible applicants for that location.”
The ‘Eligibility Criteria for Applicants’ of LPG Distributorship are provided in Para-7 of the said Guidelines. Clauses E & F of sub-para 7.1 of Para-7 are relevant for adjudication of the writ petition which reads as follows:-
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“ 7. ELIGIBILITY CRITERIA FOR APPLICANTS
All applicants fulfilling the eligibility criteria will become eligible for the draw for selection of the LPG distributorship. The eligibility Criteria is as under:-
7.1 Common Eligibility Criteria for Sheheri Vitarak, Urban Vitrak, Gramin Vitrak and Durgam Kshetriya Vitrak type of LPG Distributorships
xx xx xx
E. The selected candidate has to ensure that an all weather motorable approach road (public road or private road connecting to the public road) minimum 2.5 meter width is made available to provide access of LPG Cylinder Truck to the offered land for Godown/LPG Godown. In case of private road connecting to the Public Road, the same should be either Owned/Registered lease or having a Right of Way from the owner(s) of the land. Wherever the State Government stipulates an approach road of wider dimensions the same should be made available by the applicant.
F. An undertaking has to be provided by the selected candidate at the time of acceptance of Letter Of Intent (LOI) that the Approach “Road as specified will be provided within the timeframe as mentioned in LOI. The Approach Road will be verified for its suitability before the issuance of Letter of Appointment (LOA). It would be responsibility of the selected candidate to ensure that the LPG cylinder truck is allowed unhindered access at all times through this approach road to the LPG Godown upon commissioning of the LPG distributorship. In the event of failure of selected candidate to make available the approach road, the LOI is liable to be cancelled along with forfeiture of the amount deposited before the FVC (10% of the applicable security deposit). OMCs will not be held responsible for any investment made by candidate in the construction of the Godown without having a proper approach road.
Xx xx xx”
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2.1 It is alleged in the writ petition that the Godown for storing LPG Cylinders cannot be set up at the proposed site offered by opposite party No.3, as no access road to the said plot is available. There are residential houses over adjacent plots on which no road can be constructed. The authorities without verifying the same, selected the opposite party No.3 by drawal of lottery on 14.03.2017. Accordingly, the petitioner along with other applicants lodged complaint against such selection. The Sarapanch of Jaradagada Grama Panchayat also lodged a complaint in that regard with the Collector, Ganjam at Chatrapur on 27.03.2017 (Annexure-4) stating that there is no public access to the proposed site given by the opposite party No.3. The petitioner had also made an application under the RTI Act on 25.03.2017 (Annexure-5), which has not yet been replied. As such, the petitioner filed this writ petition for setting aside the selection of opposite party No.3 as the LPG Distributor in respect of Subarnapur under Jaradagada Grama Panchayat.
3. Mr. Behura, learned counsel for the petitioner relying upon Clauses ‘E’ and ‘F’ of the Guidelines (supra) submitted that the eligibility criteria of applicants have been prescribed in Para-7 of the Guidelines under Annexure-2. It specifically provides that ‘ All the applicants fulfilling the
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eligibility criteria will become eligible for draw for selection of LPG Distributorship ’. He further relied upon Clause-‘E’ of subpara-7.1 and submitted that the selected candidate has to ensure that all weather motorable approach road of minimum 2.5 meters width should be made available to provide access to LPG Cylinder Truck to the proposed site/land for LPG Godown. The proposed site of opposite party No.3 does not have all weather motorable approach road for Godown of Cylinders. The proposed site of opposite party No.3 is surrounded by private residential houses. Thus, the opposite party No.3 does not fulfil the criteria of providing all weather motorable approach road to the proposed site. As such, she could not have been selected for LPG Distributorship in question. Although complaint to that effect was lodged the authorities without taking into consideration the same allowed the opposite party No.3 to participate in the drawal of lottery and she was selected. Hence, the selection of opposite party No.3 as LPG Distributor is not sustainable being in contravention of Para-7 (Eligibility Criteria) and is liable to be set aside.
4. Mr.Acharya, learned Senior Advocate referring to the counter affidavit filed by opposite party Nos.1 and 2, submitted that the suitability of the site for setting up of the
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Godown is being assessed by the officials of opposite partyCorporation at the appropriate stage as per the Guidelines before issuance of Letter of Appointment. It is his submission that after preliminary scrutiny of the applications received as per Para-13 of the Guidelines, eligible candidates were allowed to take part in the Lottery and on drawal of lottery the opposite party No.3 was selected.
Para-13 of the Guidelines reads as follows:-
“13. PROCEDURE FOR RECEIPT OF APPLICATION
Applicants for Sheheri locations will have to make application on-line in portals to be communicated in the Advertisement.
Applicants for Urban, Gramin and Durgam Kshetriya Vitark locations will have to submit applications in the prescribed format, in sealed envelope only. Acknowledgement for applications received will be sent to the applicants.
In case deficiencies are found in the application, a letter would be sent to the applicant to rectify the deficiencies within a specified period of time.
The following deficiencies will be treated as Nonrectifiable:
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Further, in case where candidate has been declared ineligible on account of deficiencies falling under non-rectifiable category as listed above and if a representation is received from the candidate within 21 days period from the date of rejection letter, then the same will be examined for a suitable decision only in those cases wherein clarification/supporting documents are specifically provided for a the details which have been filled in the application form by the applicant for a particular parameter.”
Referring to Clause-‘E’ of the Guidelines (supra), he submitted
that a selected candidate has to ensure that an all weather motorable approach road (public road or private road connecting to the public road) minimum 2.5 meters width is made available to provide access of LPG Cylinder Truck to the offered land for Godown/LPG Godown. After being selected only, the selected candidate has to ensure the same. Further, referring to Clause ‘F’ of the Guidelines (supra), he submitted that an undertaking has to be provided by the selected candidate at the time of acceptance of Letter of Intent (LOI) that the approach road as specified will be provided within the time frame as prescribed in LOI. Thereafter, the approach road will be verified for its suitability before issuance of Letter
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of Appointment (LOA). The question of verification of availability of all weather motorable approach road does not arise at the stage of drawal of lottery, as specified in the said Guidelines. As such, opposite party No.3 cannot be said to be not eligible for consideration of her candidature as alleged by the petitioner. Referring to Annexure-A/3 to the counter, Mr.Acharya, learned Senior Advocate submitted that LOI in favour of opposite party No.3 was issued on 5th April, 2017. In compliance of Clause ‘E’ of the Guidelines (supra), a clause has been incorporated in the LOI, which read as follows:-
“ You should have to ensure that an all weather motorable approach road (public or private road connecting to the public road) of minimum 2.5 metre width is made available within a period of four months from the date of this letter in order to provide access of LPG Cylinder Truck to the offered land for Godown/LPG Godown. In case of private road connecting to the Public Road, the same should be either owned/registered lease or having a right of way from the owner(s) of the land as prescribed in the Brochure. Relevant land documents to this effect should be made available before issuance of Letter of Appointment. ”
However, in view of the interim order passed by this Court on 25.04.2017, selection process could not proceed further and
LOA has not yet been issued in favour of the selected candidate, namely, opposite party No.3. He further submitted
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that if a candidate gives false information he/she can be dealt with as per Para-26 of the Guidelines , with reads as follows:-
“26. FURNISHING OF FALSE INFORMATION If any statement made by the applicant in the application or in the documents enclosed therewith or subsequently submitted in pursuance of the application at any stage is found to have been suppressed/ misrepresented/incorrect or false affecting eligibility, then the application/candidature is liable to be rejected without assigning any reason.
In case the selection of the candidate is rejected after the FVC or after issuance of LOI but before issue of Letter of Appointment, then the amount deposited by the selected candidate before the FVC is conducted i.e. 10% of the applicable security deposit will be forfeited.
In case the selected candidate has been appointed as a distributor and the allotment is liable to be cancelled, then the distributorship will be terminated along with forfeiture of security deposit remitted by the candidate. In such cases, the selected candidate / distributor will have no claim whatsoever against the respective PSU Oil Marketing Company. ”
Thus, he submitted that there is a full-proof selection process and all possible measures are taken before issuance of LOA. The petitioner having failed in the selection process has no locus standi to challenge the process of selection. Hence, the writ petition being devoid of merit is liable to be dismissed.
5. Mr.Panda, learned counsel for opposite party No.3 (selected candidate) with reference to the counter affidavit filed by her submitted that on being selected by drawal of
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lottery, LOI was issued to her as per Annexure-A/3 in respect of LPG Distributorship at Subarnapur under Jaradagada Grama Panchayat, which was reserved for OBC Women category. The selection has been done strictly in terms of the Guidelines. The LPG Godown constructed by opposite party No.3 at her own cost is ready for storage of LPG Cylinders. Since the criteria of selection of LPG Distributorship of opposite party No.3 come under the category of ‘Gramin Vitarak’, she has constructed the Godown for storage of minimum capacity of 5000 Kgs. of LPG Cylinders. It is his submission that after preliminary scrutiny of applications, as per Para-13 of the Guidelines and observing due formalities, opposite party No.3 along with others including the petitioner were informed to participate in the process of lottery held on 14.03.2017 and the opposite party No.3 came out successful. In the meantime, LOI has already been issued in her favour. Although the lottery was drawn on 14.03.2017 and LOI has been issued in her favour on 5th April, 2017 the opposite party No.3 is yet to commence the Distributorship as LOA has not yet been issued in her favour in view of interim order dated 25.04.2017 passed by this Court. The Sarapanch, Jaradagada Grama Panchayat in his letter dated 01.06.2017 under Annexure-B/3 addressed to the Territory Manager of the
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opposite party-Corporation clearly expressed his no objection for construction of LPG storage Godown over the proposed site offered by opposite party No.3. He further submitted that the allegation of proposed site of LPG Godown of opposite party No.3 has no access of all weather motorable approach road as it is surrounded by residential plots and houses, are false and as such, he prayed for dismissal of the writ petition.
No.3 to participate in the selection process of LPG Distributorship of Subarnapur village under Jaradagada Grama Panchayat in the district of Ganjam. From the averments made in the writ petition as well as the submissions made by Mr.Behura, learned counsel for the petitioner, it appears that the sole objection raised by the petitioner is with regard to non-availability of all weather motorable approach road to the proposed site of LPG Godown provided by opposite party No.3.
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the said Clause deals with both draw of lottery and postselection criteria when the LOI and LOA are issued. ‘All weather motorable approach road’ has been dealt with specifically in Clauses ‘E’ and ‘F’ of the Guidelines (supra). It specifically provides that a selected candidate has to ensure that all weather motorable approach road (public road or private road connecting to the public road) of minimum 2.5 metres width is made available to provide access to LPG Cylinder Truck to the offered land for Godown/LPG Godown. Thus, after being selected through drawal of lottery only, the candidate has to ensure that the proposed site for LPG Godown has an all weather motorable approach road. Further, Clause-‘F’ provides that an undertaking has to be provided by the selected candidate at the time of acceptance of LOI that the approach road as specified will be provided within the time frame as mentioned in LOI. It further provides that the suitability of approach road as offered by the selected candidate will be verified by the authorities before issuance of LOA. The aforesaid provisions made in the Guidelines make it abundantly clear that on preliminary verification of the applications as per Para-13 of the Guidelines (supra), if a candidate is found suitable/eligible, he /she would be allowed to participate in the process of selection (through drawal of
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lottery). After being selected, he/she has to ensure that the offered site/plot has all weather motorable approach road of 2.5 meters width. It further appears that the suitability of the approach road will be verified by the authorities before issuance of LOA. Thus, the allegation of Mr.Behura, learned counsel for the petitioner to the effect that the opposite party No.3 was not eligible to participate in the selection process, is not sustainable. It further appears that in conformity with Clause-E of the Guidelines (supra), the LOI was issued to the opposite party No.3, wherein a specific clause has been incorporated to the effect that she should ensure that an all weather motorable approach road of minimum 2.5 meters width will be made available within a period of four months from the date of issuance of said LOI (Annexure-A/3). Thereafter, the selection process could not proceed in view of the interim direction of this Court dated 25.04.2017.
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without any basis. On a close scrutiny of the materials on record, more particularly the LOI (Annexure-A/3) issued on 05.04.2017 makes it abundantly clear that opposite party No.3 has to provide an ‘all weather motorable approach road’ within a period of four months of issuance of LOI in terms of Clause-‘E’ of the Guidelines (supra). As such, the allegations made by the petitioner being baseless, merits no consideration.
8.1 Accordingly, the writ petition being devoid of any merit is dismissed. Interim order dated 25.04.2017 passed in Misc. Case No.5839 of 2017 stands vacated.
8.2 Authenticated copy of this order downloaded from the website of this Court shall be treated at par with certified copy in the manner prescribed in this Court’s Notice No.4587 dated 25.03.2020.
……..……………………
K.R. Mohapatra,J.
Orissa High Court, Cuttack. Dated the 14th Oct..,2020/ss
3 issues framed by the court
Whether the petitioner has locus standi to challenge the selection of another candidate for LPG distributorship based on lack of approach road.
Whether the absence of an all-weather motorable approach road at the time of lottery disqualifies the selected candidate under the guidelines.
Whether there is material evidence on record to suggest the proposed LPG godown site lacks an all-weather motorable approach road.
Sanjukta Kumari Devi
Bharat Petroleum Corporation Ltd.
Sumitra Choudhury
K.R.Mohapatra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
