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SCA/2394/2011 11/ 11 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 2394 of 2011
For
Approval and Signature:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
PATEL
SUJABHAI KALUBHAI - Petitioner(s)
Versus
UNION
OF INDIA DEPARTMENT OF PETROLEUM, OIL & 1 - Respondent(s)
=========================================================
Appearance
:
MR
MAHENDRA U VORA for
Petitioner(s) : 1,
MR PS CHAMPANERI for Respondent(s) : 1,
MR
YV VAGHELA for Respondent(s) : 1,
NOTICE SERVED BY DS for
Respondent(s) : 2,
MR. M.R. BHATT, LEARNED SENIOR ADVOCATE WITH
MRS MAUNA M BHATT for Respondent(s) :
2,
=========================================================
CORAM
:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 30/06/2011
ORAL
JUDGMENT
1. Rule.
Mr. V.Y. Vaghela, learned Central Government Standing Counsel, waives
service of Notice of Rule for respondent No.1 and Mr. M.R. Bhatt,
learned Senior Advocate with Mrs. Mauna M. Bhatt, learned advocate,
waives service of Notice of Rule for respondent No.2.
2. On
the facts and in the circumstances of the case, and with the consent
of the learned advocates for the respective parties, the petition is
being heard and finally decided today.
3. The
challenge in this petition under Article 226 of the Constitution of
India, is to order dated 03.02.2011 passed by respondent No.2,
whereby the petitioner has been informed that he has not been found
to be eligible for distributorship pursuant to the Rajiv Gandhi LPG
Vitrak (RGGLV) scheme.
4. Briefly
stated, the facts of the case are that respondent No.2 issued an
advertisement in the daily vernacular newspaper, “Sandesh”,
on 08.10.2010, inviting applications for distributorship of LPG gas
cylinders under the RGGLV scheme, from eligible persons who fulfilled
the eligibility criteria enumerated in clauses 3(a) to (j) therein.
The last date for receipt of the applications was 08.11.2010. The
petitioner made an application on 02.11.2010, along with certain
documents. One of the criteria stipulated in the advertisement in
clause 3(g) is that the applicant should be the owner of land at the
advertised site, for construction of the godown. It is further
mentioned in the advertisement, that in the event of the applicant
being married, the land belonging to his family, namely his spouse
and unmarried children, can be taken into consideration. The
applicant has disclosed in clause 7.7 of his application that he is
married. Along with the application, the applicant has enclosed a
consent letter from his father, to the effect that if the petitioner
is found to be eligible, his father would transfer land owned by him
to the petitioner, for construction of the godown. On scrutiny of the
application of the petitioner, respondent No.1 found him to be
ineligible, as the petitioner did not own land at the advertised
location, at the time of making the application. This was conveyed to
the petitioner by respondent No.2, vide communication dated
08.12.2010. It was mentioned in the said communication that the
petitioner could submit his representation, if any, by 28.12.2010,
after which date, no representation would be entertained. The
petitioner submitted an undated representation/ clarification, which
has not been placed on the record of the case, but has been received
by the concerned respondent on 24.12.2010. After considering the
same, respondent No.2 informed the petitioner, vide impugned
communication dated 03.02.2011, that he has not been found to be
eligible under the RGGLV scheme for gas distributorship, as he did
not own land in the advertised location on the date of making the
application. The case of the petitioner is that subsequent to making
the application, land has been transferred to his name, which is
evident from Village Form No.6, dated 16.12.2010. According to the
petitioner, respondent No.2 has permitted him to make a
representation, therefore, the fact that land has subsequently been
transferred his name ought to have been considered while deciding the
representation, especially as the land has been transferred before
the date of decision of the representation. Aggrieved by the
rejection of his candidature, vide the impugned communication dated
03.02.2011, the petitioner has approached this Court, by filing the
present petition.
5. Mr.
Mahendra U. Vora, learned advocate for the petitioner has submitted
that though the petitioner did not possess land in his name at the
time of making the application on 02.11.2010, however, the father of
the petitioner had consented to transfer land to the name of the
petitioner. In fact, the land has been transferred in the name of the
petitioner before the decision of the representation by respondent
No.2. However, this aspect has been totally overlooked and ignored by
the said respondent. It is further submitted that the said
respondent, by communication dated 08.12.2010, had permitted the
petitioner to make a representation, therefore, the factum of
transfer of land which took place before the decision of the
representation ought to have been considered, and the petitioner
ought to have been declared an eligible candidate for the gas
distributorship. As the action of respondent No.2 is not in
accordance with the clauses of the advertisement, which permit filing
of a representation, the impugned action and consequent impugned
order passed by respondent No.2, be quashed and set aside.
6. The
petition has been resisted by Mr. V.Y. Vaghela, learned Central
Government Standing Counsel for respondent No.1 and Mr. M.R. Bhatt,
learned Senior Advocate with Mrs. Mauna M. Bhatt, appearing for
respondent No.2. Mr. V.Y. Vaghela, learned Central Government
Standing Counsel for respondent No.1 has supported the stand taken
by the learned Senior Advocate appearing for respondent No.2.
7. An
affidavit-in-reply has been filed by respondent No.2, wherein it has
been elaborated that as per the eligibility criteria contained in
clause 3(g) of the advertisement, the petitioner should have owned
the land in question at the time of filing the application, which is
not the case, therefore, his candidature has been rightly rejected.
Relying upon the averments made in the said affidavit-in-reply, it is
contended by the learned Senior Advocate for respondent No.2, that
the advertisement clearly stipulates that the applicant should own
suitable land for the godown at the time of making the application.
Land owned by spouse or unmarried child or children who are included
in the family could also have been considered. It is emphasized that
at the relevant point of time, the land was not owned by the
applicant. Being a married person,
the applicant cannot be included in the family unit of his father.
The subsequent transfer of land by the father of the petitioner to
the name of the petitioner would not make the petitioner eligible, if
he did not possess the eligibility at the time of making the
application. It is pointed out by the learned Senior Advocate that
the Village Form No.6 that has been annexed by the petitioner to
prove the transfer of land to his name is dated 16.12.2010, whereas
he has made the application on 02.11.2010. The said document, being
subsequent to the date of the application, cannot retrospectively
confer eligibility upon the petitioner, therefore, the representation
made by the petitioner has rightly been rejected. On the strength of
the above submissions, it is prayed that the petition be dismissed.
8. The
learned Senior Advocate has brought to the notice of this Court,
judgment dated 21.04.2011 rendered in Special Civil Application
No.2391 of 2011, by a concurrent Bench, wherein the Court has
dismissed the petition on similar facts.
9. I
have heard the learned counsel for the respective parties, perused
the averments made in the petition, and the documents annexed
thereto.
10. It
is not disputed that at the time of making the application on
02.11.2010, the petitioner did not own land at the advertised
location, for the construction of a godown, as per the eligibility
criteria prescribed in clause 3(g) of the advertisement. The
petitioner has submitted a consent letter given by his father, along
with the application. A perusal thereof reveals that the father of
the petitioner has consented to transfer land to the name of the
petitioner, in the event that the petitioner is given gas
distributorship. Such a document would not confer eligibility on the
petitioner, as the petitioner did not own the requisite land on the
date of making the application. Though the father of the petitioner
appears to have transferred
land to the name of the petitioner, subsequently, this would not
confer eligibility to the petitioner, when none existed at the time
of making the application. There is no clause in the advertisement
that stipulates that a subsequent transfer of land would make the
applicant eligible, even if he was not eligible at the time of making
the application. The eligibility criteria of the petitioner has to be
seen as on the date of making the application and not subsequent
thereto. Admittedly, the petitioner is married, and his family unit
would comprise of himself, his wife and unmarried children, if any.
Being an adult, married person, he would not be included in the
family unit of his father. The fact remains that on the date of
making the application, neither the petitioner, nor his spouse or
unmarried children, if any, owned any land at the advertised
location. In these circumstances, as the petitioner did not fulfil
the eligibility criteria as stipulated in the advertisement, his
candidature has rightly been rejected by respondent No.2. The
petitioner has been informed by communication dated 08.12.2010 that
he has been found to be ineligible and has been permitted
to make a representation before 28.12.2010. The petitioner has made a
representation, the contents of which are not known, as this document
has not been placed on the record of the case. However, after
considering the said representation, respondent No.2 has informed the
petitioner, vide impugned order dated 03.02.2011, that he has not
been found to be eligible, as he did not own land in his name at the
advertised location, on the date of the application.
11. It
has been strenuously argued by the learned advocate for the
petitioner that respondent No.2 should have considered the aspect
that the land has been transferred to the name of the petitioner
before the impugned order dated 03.02.2011 has been passed. The
petitioner has been permitted to make a representation by respondent
No.2, therefore, the transfer of land to his name should have been
considered.
12. I
am afraid that I cannot agree to this submission of the petitioner.
In my considered view, the fact that the petitioner has been
permitted to make a representation would not change the eligibility
criteria, stipulated in the advertisement. It is clearly mentioned in
the advertisement that the petitioner would have to fulfil the
requisite criteria on the date of the application. There is no clause
in the advertisement that stipulates that a subsequent transfer of
land to the name of the applicant after the date of the application
would make the applicant eligible to be considered. In the absence of
any such clause, the subsequent transfer of the land in the name of
the petitioner would make no difference, insofar as his eligibility
is concerned. The impugned order of respondent No.2, therefore, calls
for no interference.
13. For
the aforestated reasons, there is no merit in the petition, which
deserves to be rejected. It is, accordingly rejected. Rule is
discharged.
(Smt.
Abhilasha Kumari, J.)
Safir*
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