Harendra Prasad Gond, aged about 51 years, son of Shri Bengali Saha, resident of v. 1. Union of India through the Secretary, Ministry of Petroleum and Natural Gas, Government
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Letters Patent Appellate Jurisdiction) LPA No. 306 of 2021 Harendra Prasad Gond, aged about 51 years, son of Shri Bengali Saha, resident of Purani Bagan Ward No. III, Saraikela, P.O + P.S.- Seraikela, District- Seraikela Kharswan (Jharkhand). ......Appellant Versus 1. Union of India through the Secretary, Ministry of Petroleum and Natural Gas, Government of India, New Delhi, P.O. + P.S- New Delhi Dist- New Delhi 2. Regional Manager (LPG) Sales, Hindustan Petroleum Corporation Limited, Industry House, 7th Floor, 10 Camat Street, Kolkata- 700017, P.O. + P.S. Kolkatta, Dist.- Kolkatta. 3. Hindustan Petroleum Corporation Limited, Lok Nayak Bhawan, 6th Floor, Dak Bunglow Chauraha, Patna through the General Manager. P.O. G.P.O- P.S. Kotwali, Dist- Patna. 4. Hindustan Petroleum Corporation Limited, Jamshedpur, Singhbhum East through its Sales Officer (LPG), P.O. + P.S.- Jamshedpur, Dist- East Singhbhum 5. Dealer Selection Board through its Chairman, Hindustan Petroleum Corporation Limited, Jamshedpur, Singhbhum East, P.O. + P.S.- Jamshedpur, Dist- East Singhbhum. 6. The State of Jharkhand. 7. The Deputy Commissioner, Siwan (Bihar), P.O+P.S and Dist. Siwan (Bihar). 8. Anand Bopai son of not known resident of Zone-1, House No.1, P.O. & P.S. Birsa Nagar, Jamshedpur, East Singhbhum. 9. The Deputy Commissioner, Saraikela- Kharswan, P.O. + P.S.- Saraikela- Kharswan , Dist- East Singhbhum. --------------- ... Respondents CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Appellant
Legal Reasoning
: Mr. Ajit Kumar, Senior Advocate : Ms. Aparajita Bhardwaj, Advocate : Mr. Ritesh Kumar, Advocate For the State of Jharkhand: Mr. Jayant Franklin Toppo, G.A.-V : Ms. Moushmi Chatterjee, AC to G.A.-V : Mr. S.P. Roy, GA (Bihar) For the State of Bihar For the Resp. Nos. 2 to 5 : Mr. Rahul Lamba, Advocate For the Resp. No. 8 : Mr. Deepak Kumar Prasad, Advocate : Ms. Archana Kumari Singh, Advocate ---------------
Decision
O R D E R 04th September 2023 Per, Shree Chandrashekhar, J. This Letters Patent Appeal has been filed against the order dated 14th June 2021 by which W.P.(C) No. 5275 of 2008 was dismissed 2 LPA No. 306 of 2021 by the writ Court. 2. In W.P.(C) No. 5275 of 2008, the appellant who was the writ petitioner made the following prayers: to immediately “(a) This Hon’ble Court may be pleased to direct respondents- Hindustan Petroleum Corporation to immediately grant the petitioner LPG dealership/distributionship of Jamshedpur (Mango), East Singbhum as the competent authority i.e. Deputy Commissioner, Siwan has duly issued in his favour caste certificate dated 20.6.2007 (Annexure-3) specifying that he belongs to “Gond” community and, therefore, is a schedule tribe; (b) This Hon’ble Court may be pleased to direct respondents- Hindustan Petroleum Corporation remove Anand Bopai (respondent no. 8) from LPG dealer/distributor of Jamshedpur (Mango), East Singbhum. (c) This Hon’ble Court may be pleased to hold and declare that the petitioner is legally entitled for obtaining LPG dealership from respondent Hindustan Petroleum Corporation, as he was selected successfully on 7.1.2002 in an interview conducted by respondent- Dealer Selection Board placing him at serial no. 1; (d) This Hon’ble Court may be pleased to hold and declare that as the petitioner is declared by the competent authority as a member belonging to “Gond” community within Schedule Tribe, he has legal right to obtain LPG dealership/distributionship from respondent Hindustan Petroleum Corporation; (e) This Hon’ble Court may be pleased to hold and declare that Anand Bopai’s complaint to respondent Hindustan Petroleum Corporation that petitioner is not a member of “Schedule Tribe” was wholly false, frivolous, baseless and motivated, which unnecessarily victimized and harassed the petitioner and deprived him of the privilege of obtaining LPG dealership. (f) This Hon’ble Court may be pleased to hold and declare that not grating of LPG dealership to petitioner and showing lackadaisical and tongue-tight attitude on the petitioner’s application (Annexure-4) by the respondents is wholly illegal, arbitrary, unreasonable, unjust, unfair and violative of Articles 14, 19(1)(g) and 21 of the Constitution of India.” 3. On a glance at the aforesaid prayers made in the writ petition, it is quite evident that such prayers cannot be granted by the writ Court in exercise of the powers under Article 226 of the Constitution of India. A declaration as to entitlement of an applicant for grant of LPG dealership cannot be made by the writ Court because in the matters of grant of contract, state largesse etc. all that an applicant can claim is fair and equal treatment while considering his claim with several other applicants. The writ Court referred to “Virender Chaudhary Vs. Bharat Petroleum Corporation and others” (2009) 1 SCC 297 to hold that the appellant did not acquire an individual right for award of LPG dealership. 4. through an advertisement issued on 24th August 2000 disclose that after The proceedings which started for grant of LPG dealership lapse of 7 years when the appellant was issued a fresh caste certificate 3 LPA No. 306 of 2021 declaring him belonging to Scheduled Tribe, he re-agitated his claim and was seeking allotment of the LPG dealership after cancelling the dealership granted to the respondent no. 8. In the first place, grant of LPG dealership cannot be claimed as a matter of right and, secondly, this is not a case set-up by the appellant that the respondent no. 8 was not otherwise eligible. Mr. Ajit Kumar, the learned senior counsel for the appellant has referred to an observation by the writ Court in W.P.(C) No. 2372 of 2002 wherein the writ Court has made an observation that the selection of LPG dealership if made during enquiry by the Deputy Commissioner at Singhbhum that shall be subject to the decision taken by the Deputy Commissioner. The learned senior counsel would submit that if the initial order itself was bad in law the subsequent orders must be held bad and while so, LPG dealership should be granted to the appellant. 5. The facts disclosed in the present proceeding indicate that on a complaint made by the respondent no. 8 regarding caste of the appellant, the Deputy Commissioner at Singhbhum cancelled the caste certificate issued on 19th November 1998 and for that reason the appellant was not considered for LPG dealership. He came to the writ Court in W.P.(C) No. 2372 of 2002 which was dismissed by the writ Court with the aforementioned observation. After the writ Court’s order, the appellant approached the Deputy Commissioner at Singhbhum for a caste certificate who however asked him to approach the Deputy Commissioner at Siwan for a caste certificate. Aggrieved thereby, the appellant again came to the writ Court by filing W.P.(C) No. 519 of 2004 which was dismissed in the following terms: “In these circumstances, it is not possible for this Court also to give any adjudication in favour of the Petitioner because this would involve entering into disputed terrains. Consequently no relief can be granted to the Writ Petitioner in this Writ Petition. However the Petitioner has the liberty to move the appropriate forum including the forum indicated in the impugned order for purposes of establishing his claim that he belongs to that community. With that liberty, this Writ Petition stands disposed off and closed…” 6. Thereafter, LPA No. 286 of 2004 which was filed by the appellant to challenge the order passed in W.P.(C) No. 519 of 2004 has also been dismissed holding as under: “4. Strictly speaking, it may be correct to say that the Commissioner, who was directed to decide the question, has not decided the same. Obviously, the Commissioner was not satisfied on the materials about the claim of the appellant, but in view of the circumstances pointed out 4 LPA No. 306 of 2021 by the petitioner-appellant, the Commissioner directed the appellant to approach the concerned authority in Siwan and get the necessary certificate in that behalf from his original place of birth. In a true sense, the Commissioner has acted properly and has ensured that no prejudice would be caused to the appellant on the basis of non-availability of all the relevant records within his jurisdiction. In this situation, we are satisfied that the Commissioner was justified in adopting the course he did and the learned Single Judge was justified in refusing to interfere. 5. Since, the question whether the appellant belongs to the Gond community has to be decided by the appropriate authority, we do not think it proper to discuss the merits of the case. However, we decline to interfere and dismiss this appeal.” 7. This needs a mention that challenge by the appellant to the order passed by the Letters Patent Court before the Hon’ble Supreme Court vide SLP (C) No. 021507 of 2004 has also failed. 8. On 20th June 2007, a caste certificate was issued to the appellant by the Deputy Commissioner, Siwan and a copy of the same was forwarded by him to the Secretary, Minister, Petroleum and Natural Gas and Panchayati Raj, Government of India, New Delhi and the Hindustan Corporation Limited, LPG, Patna. On the representation of the appellant no decision was taken by the HPCL and, aggrieved thereby, the appellant approached the writ Court in W.P.(C) No. 5275 of 2008. 9. The writ Court has held as under: “8. Be that as it may, having gone through the rival submissions of the parties and on perusal of the records, it appears that the petitioner earlier approached this Court in W.P.(C) No.2372 of 2002, challenging the order of cancellation dated 02.03.2002, which was disposed of vide order dated 14.05.2002. In view of the direction of this Court, the petitioner filed a representation before the Deputy Commissioner, West Singhbhum and thereafter, vide order dated 18.11.2002, the petitioner was directed to take necessary steps to obtain caste certificate from the competent authority i.e. Deputy Commissioner, Siwan. Aggrieved by the same, the petitioner also preferred a writ petition before this Court being W.P.(C) No.519 of 2004, which was dismissed and the said order has been affirmed up to the Hon’ble Apex Court. Thereafter, the petitioner approached the District Magistrate, Siwan for obtaining case certificate which was issued to him on 20.06.2007, mentioning therein that he belongs to Gond Community, which comes within Scheduled Tribe. Thereafter, no orders were passed regarding grant of dealership of LPG of Mango Area in his favour, he approached this Court in the year, 2008 by preferring instant writ petition. In the meantime, almost four years passed and the LPG dealership of Mango Area was allotted to respondent No.8 in the year, 2004 itself. The said allotment of respondent No.8 was never challenged by the petitioner in earlier writ petitions rather the petitioner was aggrieved by the cancellation of his allotment due to the complaint of respondent No.8 regarding proper caste certificate and moment he obtained caste certificate from Deputy Commissioner, Siwan, he rushed to the authorities for cancellation of dealership of respondent No.8 and allotment of the said dealership to present petitioner. The similar issue fell for consideration before Hon’ble Supreme Court of India in case of Virender Chaudhary Vs. Bharat Petroleum Corporation and Others, reported in (2009) 1 SCC 5 LPA No. 306 of 2021 297, it has been held thus: 20. The 5th respondent did not acquire an indefeasible right. He was selected by the Oil Selection Board. The said selection was subsequently cancelled and a letter of intent was issued in favour of the appellant in May 2004. It was not questioned immediately after issuance of the letter of intent in favour of appellant in May 2004. In his writ application, the 5th respondent did not question the grant of dealership in favour of the appellant. He was afforded an opportunity to amend the writ petition. He filed such an application only after 16 months. However, the writ petition itself was withdrawn and only in October 2006, the present writ application was filed. From the facts as noticed hereinbefore, there can, therefore, be no doubt that from May 2004 to October 2006, the respondent did not take any step to challenge insurance of the letter of intent granting dealership in favour of appellant. 21. Considering the fact that starting of a business in LPG dealership requires a huge investment and infrastructure therefor is required to be provided and a large number of employees are to be appointed therefor, we are of the opinion that the High Court committed a serious error in not taking these factors into consideration in proper perspective. The impugned judgment, therefore, cannot be sustained and is set aside accordingly. 9. From the above discussion, it is clear that the petitioner has filed this writ petition after four years from the date of allotment of LPG dealership in favour of respondent No.7 and he has never made/added prayer for cancellation of dealership granted in favour of the respondent No.8 neither the court had passed order not to grant dealership to other eligible person. The LPG agency is in the nature of public utility service and as such, the respondent-Corporation has rightly allotted the dealership to waitlisted candidate. The petitioner after obtaining caste certificate approached this Court as well as respondent-authorities for allotment of dealership to him, which is not acceptable to this Court as the petitioner did not acquire a indefeasible right for grant of dealership and the same could not have been reserved for four years till the petitioner gets a caste certificate in his favour. The respondent- Petroleum Corporation cannot be said to be in fault in granting the dealership of LPG to respondent No.8, who was at second position in the merit list fulfilling all the eligibility criteria. There is no merit in the instant case. 10. Resultantly, this writ petition stands dismissed.” 10. The checkered history of this case would reveal that the appellant approached the Court repeatedly at least on five occasions but in the initial two rounds of litigation the allotment of LPG dealership to the respondent no.8 was not questioned. There is nothing on record to arrive at a conclusion that the appellant was cooperating with the enquiry as indicated by the writ Court in the proceeding of W.P.(C) No. 2372 of 2002 and, that, the delay in issuance of the caste certificate is not attributable to him. This is an admitted position that the LPG dealership was not awarded to the appellant and this is not a case where the allotment was made in his favour but later on cancelled. May be he was placed at serial no.1 in the 6 LPA No. 306 of 2021 panel of the candidates but, as on the date of award of LPG dealership, he had no valid caste certificate. The submission raised by Mr. Ajit Kumar, the learned senior counsel for the appellant that on issuance of a fresh caste certificate dated 20th June 2007 the stand of the appellant has been re-affirmed that he belonged to the Scheduled Tribe and, therefore, it must be held that in the beginning itself he was entitled for award of the LPG dealership cannot be accepted. In the circumstances of the case, no such inference can be drawn to hold that he was illegally denied the allotment of LPG dealership. The legal principle when the foundation goes the superstructure shall fall as contained in “sublato fundamento cadit opus”, is not applicable in the present case because the allotment of LPG dealership in favour of the respondent no.8 was not illegal. 11. case, LPA No. 306 of 2021 is dismissed. Having regard to the aforesaid facts and circumstances in the (Shree Chandrashekhar, J.) (Anubha Rawat Choudhary, J.) Saurav/Pankaj-