Tapas Kumar Das vs Hindustan Petroleum Corporation Limited

2024 INSC 225 REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4420 OF 2024 [ARISING OUT OF SLP (C) NO. 19618 OF 2019]

TAPAS KUMAR DAS …APPELLANT

VS.

HINDUSTAN PETROLEUM CORPORATION LIMITED & ORS. …RESPONDENTS

J U D G M E NT

DIPANKAR DATTA, J.

THE APPEAL

1. An intra-court appellate judgment and order1 (“impugned

judgment”, hereafter) of an Hon’ble Division Bench of the High

Court at Calcutta (“High Court”, hereafter), reversing the

judgment and order2 (“order”, hereafter) of a learned Single

Signature Not Verified Judge, is called in question in the instant civil appeal. Vide the Digitally signed by Deepak Guglani Date: 2024.03.19 18:25:24 IST Reason: 1 dated 28th March, 2019 2 dated 25th January, 2019

1 impugned judgment, the Division Bench of the High Court allowed

the writ appeal3 carried by Hindustan Petroleum Corporation

Limited (“HPCL”, hereafter) from the order and set aside the same.

The Single Judge had, while allowing a writ petition 4 of Mr. Tapas

Kumar Das (“appellant”, hereafter), directed HPCL to proceed with

his candidature for LPG5 distributorship.

BRIEF RESUME OF FACTS

2. The facts, giving rise to this appeal, lie in a narrow compass.

3. HPCL, Indian Oil Corporation Limited (“IOCL”, hereafter) and

Bharat Petroleum Corporation Limited issued a joint advertisement

for LPG distributorships at several locations in the 31st August,

2017 editions of the Bangla dailies Bartaman and Anandabazar

Patrika (“the Advertisement”, hereafter). Entries bearing SI. Nos.

1 to 607 in the Advertisement had 10 (ten) columns (“Part 1”,

hereafter) and those from SI. No. 608 onwards had 9 (nine)

columns (“Part 2”, hereafter)6. The header “Gram Panchayat” did

not feature in Part 2 and, hence, had 1 (one) column less than

Part 1.

4. Parts 1 and 2 of the Advertisement with the headers and to the

extent relevant for a decision on this appeal, as per the English

translation placed before us, are set out hereunder:

3

M.A.T. No. 255 of 2019 with C.A.N. No. 1818 of 2019. 4 W.P. 1595 (W) of 2019.

5 Liquified Petroleum Gas.

6 The Advertisement, by itself, has not been split into Parts 1 and 2; the same has been done here for ease of reference.

2 Part 1

SI. Oil Location Gram Block District Class Nature of Amount Marketing No. company (detail Panchayat market / LPG of plan particulars distributorship security of the place / City / Urban / deposit where Rural / (in lakh) applicable) Inaccessible area distributorship

1 [***] [***] [***] [***] [***] [***] [***] [***] [***] - 607

Part 2

SI. Oil Location Block District Class Nature of market / Amount of Marketing No. company (detail LPG distributorship / security plan particulars City / Urban / Rural deposit (in of the place / Inaccessible area lakh) where distributorship applicable)

608 [***] [***] [***] [***] [***] [***] [***] [***] - 623 624 HPC Haripal Haripal Hooghly SC Rurban 3 2017-18

625 [***] [***] [***] [***] [***] [***] [***] [***] - 631

5. Interested in obtaining an LPG distributorship qua Sl. No.624

reserved for a member of the Scheduled Caste community, i.e.,

‘Location’ and ‘Block’ Haripal in the district of Hooghly, the

appellant submitted an online application for the same under the

‘SC’ category on 16th October, 2017. The appellant’s application

was found to be in order, whereupon he was called upon to

participate in the ensuing computerised draw of lots for selection

for the distributorship for Haripal. Fortune smiled on the appellant

and he emerged as winner in the draw of lots. HPCL informed the

appellant vide a letter dated 4th November, 2018 that he had been

declared successful and also that he was required to comply with

3 the instructions contained therein. Diligently, the appellant

deposited a demand draft of Rs. 30,000/- with HPCL and

submitted relevant land documents in compliance with the letter

dated 4th November, 2018.

6. One Sujoy Kumar Das (“added respondent”, hereafter) lodged a

complaint dated 9th November, 2018 with HPCL questioning the

appellant’s candidature on the basis that the land offered by him

for the showroom was in mouza7 Gopinagar and not in mouza

Haripal. Incidentally, the added respondent had participated in a

previous round of selection conducted by HPCL for the same

location, i.e., Haripal, and his candidature was rejected by HPCL

on the ground that the land for the showroom offered by him was

not located in village Haripal. Upon cancellation of the appellant’s

candidature, the Chief Regional Manager of HPCL (“fourth

respondent”, hereafter) intimated the same to the added

respondent vide letter dated 2nd January, 2019 and assured to him

refund of Rs. 5,000/- which he had deposited as complaint fee,

shortly.

7. Close on the heels thereof, the fourth respondent addressed a

letter dated 2nd January, 2019 cancelling the appellant’s

candidature for the LPG distributorship (“Cancellation Letter”,

7 As per Wilson’s Glossary of Judicial and Revenue Terms of British India, ‘Mauza’ or Mauja in Hindi and Mauji in Bengali is a village, understanding by that term one or more clusters of habitations, and all the lands belonging to their proprietary inhabitants : a Mauza is defined by authority to be ‘a parcel or parcels of lands having a separate name in the revenue records, and of known limits’.

4

hereafter). Therein, it was stated that the land offered by the

appellant for the showroom at “Plot No. LR-1220, Khatian No. LR-

311, Mouza-Gopinagar, Gram Panchayat-Haripal Ashuthsh (sic,

Ashutosh), Block Haripal, District Hooghly” pursuant to a

registered lease dated 16th October, 20188 for a period of 16

(sixteen) years was beyond the advertised location; hence, the

appellant’s proposed showroom had failed to meet the eligibility

criteria as per clause 8 A(n) of the Brochure for Unified Guidelines

for Selection of LPG Distributorships (“Unified Guidelines”,

hereafter), and the deposit of Rs. 30,000/- would stand forfeited.

8. It was then that the appellant invoked the writ jurisdiction of the

High Court under Article 226 of the Constitution challenging the

Cancellation Letter. The Single Judge, noticing that the

Advertisement showed the location of the distributorship as Block

Haripal, observed that “there was no specific requirement of Gram

Panchayat or mouza to disqualify” the appellant’s candidature.

Upon being satisfied that the land offered by the appellant for the

showroom was within the limits of the advertised location, the

learned Single Judge allowed the writ petition, set aside the

Cancellation Letter, and directed HPCL to proceed with the

evaluation of the appellant’s candidature and decide the same

8 the date was subsequently corrected vide letter dated 10th January, 2019 to read 16th October, 2017.

5 within four weeks upon the appellant completing all required

formalities.

9. Aggrieved by the order, HPCL invoked the appellate jurisdiction of

the High Court and laid a challenge thereto. The Division Bench

referred to the definitions of ‘Gram Panchayat’ and ‘mouza’ in the

West Bengal Panchayat Act, 1973 (“Panchayat Act”, hereafter) and

while allowing the appeal by the impugned judgment, held that

“mouza Haripal has a separate and distinct existence”, the

“offered land at mouza Gopinagar is not what is contemplated in

the advertisement for appointment of LPG distributors at Haripal”

and in such view of the matter HPCL “was justified in coming to

the conclusion that the writ petitioner failed to fulfil the eligibility

criteria”.

RIVAL CONTENTIONS

10. Mr. Sudipta Kumar Bose, learned counsel appearing on behalf of

the appellant, seeking our interference with the impugned

judgment submitted inter alia that:

a. The Division Bench fell into error by reading into the

Advertisement, conditions which had not been categorically laid

down by HPCL. The Advertisement did not state that the

showroom was to be located in any particular mouza, and that

the Advertisement did not refer to any Gram Panchayat as the

specific location either.

6 b. The appellant had been declared as the successful candidate

after due verification of his eligibility and there could have been

no occasion for HPCL to disqualify him on the complaint of the

added respondent, and that too without putting the appellant

on notice.

c. HPCL, having issued the Advertisement, could not have altered

the rules and guidelines after the appellant was declared

eligible and successful.

d. The entries from serial no. 608 onwards in the Advertisement

did not bear any column for Gram Panchayat as the locations

therein were urban or semi-urban; implying that there was no

error in the Advertisement and such an omission was

conscious.

e. The Single Judge had rightly observed that the advertised

location for the concerned showroom was Haripal with

reference to specification of Block Haripal; and since the

appellant had offered land for the showroom at a location within

the jurisdictional limits of Haripal Police Station and within

geographical limits of Haripal Block, consequently, the same

should have been considered to be covered by the advertised

location.

11. Mr. Parijat Sinha, learned counsel appearing for HPCL, in support

of upholding the impugned judgment submitted inter alia that:

7

a. The Unified Guidelines are comprehensive in nature and left no

room for ambiguity as to the location requirements to obtain

an LPG distributorship from inter alia HPCL.

b. In the State of West Bengal, villages were not identified as units

of revenue, but they were in fact identified as mouzas.

Therefore, the boundary of any village could only be defined in

terms of mouzas. Hence, the Advertisement had not been

issued for Block Haripal, but only for the mouza/village Haripal

as per the third column of Part 2 of the Advertisement. Hence,

the intention of mentioning Haripal in the third column was to

indicate Haripal mouza/village, and not the cluster of

villages/towns/cities.

c. Clause 8 A(n) of the Unified Guidelines provided for the

requirements of the showroom to be owned/leased by the

concerned applicant desirous of obtaining an LPG

distributorship. A reading of the Unified Guidelines, along with

the fact that the fifth column of Part 2 of the Advertisement

was for the District, the fourth column was for the Block, and

the third column was for the Location, meant that the third

column specified the uniqueness of the location intending it to

be for the concerned village; it would be incorrect to read the

third and fourth columns as being synonymous. Hence, a

mention of Haripal in the third column meant mouza/village

Haripal and not Block Haripal.

8 d. In this vein, since the appellant’s showroom fell within mouza

Gopinagar, the same made his candidature ineligible; though

located in Block Haripal, it was not within mouza Haripal.

12. Appearing for the added respondent and seeking dismissal of the

appeal, Mr. Zoheb Hossain, learned counsel submitted inter alia

that:

a. The added respondent was a proper and necessary party in W.P.

1595 (W) of 2019 before the High Court since the Cancellation

Letter had been issued as a consequence of acceptance of the

complaint dated 9th November 2018. Further, the added

respondent’s appeal challenging the order was also decided

vide the impugned common judgment.

b. The added respondent was also an applicant for the LPG

distributorship as per the Advertisement, and that it would be

prejudicial for him if the impugned judgment were set aside or

modified.

c. HPCL had, on an earlier occasion, rejected the added

respondent’s candidature for LPG distributorship on grounds

similar to the reasons for cancellation of the appellant’s

distributorship and, therefore, was justified in taking a

consistent and uniform stand.

d. Extending any relief to the appellant, on facts and in the

circumstances, could be inappropriate.

9 Analysis

13. We have heard learned counsel for the parties and perused the

impugned judgment of the Division Bench, the order of the Single

Judge as well as the other materials on record.

14. The limited issues that we are tasked to decide in this appeal are:

(i) Whether the land offered by the appellant for the

showroom is covered by the extent of “Location”

stipulated in the Advertisement and is compliant with

the Unified Guidelines?

(ii) Whether the Division Bench was justified in its

interference with the order under challenge before it?

15. A cursory look at the Advertisement informs us that it

contemplated the location of the relevant distributorships in the

manner such that the fifth column of Part 2 of the Advertisement

indicated the ‘District’, the fourth column the ‘Block’, and the third

column the “Location” with the words “particulars of the place

wherever applicable” following it in brackets. Also, in Part 1 of the

Advertisement, as noted above, there was an additional column

for “Gram Panchayat”. This is conspicuously missing from Part 2.

16. Viewed thus, what we find is that HPCL intended to appoint an LPG

distributor at a location named Haripal, situate within Haripal block

in the district of Hooghly, reserved for SC, with ‘Rurban’ shown as

the Type of Market/Distributorship. Much would, in our opinion,

10 turn on ‘Rurban’ which was not noticed either by the Single Judge

or the Division Bench, as the discussion follows.

17. In course of arguments, we heard Mr. Sinha submitting that there

was an error in not mentioning the “Gram Panchayat” in the

Advertisement for the subject location. In other words, there was

a mistake in the Advertisement insofar as Sl. No.624 is concerned.

However, a course correction measure was sought to be adopted

in the written notes of arguments filed on behalf of HPCL which,

as would unfold hereafter, does more harm than good to its cause.

It is stated in the written notes that “from Sl. No.608 onwards, all

of the locations advertised … were either urban or semi-urban with

regard to the nature of the market/LPG distributorship; hence, the

relevant Gram Panchayat was not mentioned in the said

Advertisement”. It is also stated therein that in terms of the

Advertisement, the appellant “ought to have offered land located

within (sic) in village/mouza location – Haripal (column 3),

which is the advertised location” (bold in original).

18. HPCL having advertised Haripal as the location within Haripal block

for the LPG distributorship and without there being anything more

in the Advertisement with specifics as to the ‘locality’, the

candidature of the appellant and the land offered by him for the

showroom had to be considered bearing in mind the relevant

clauses of the Unified Guidelines, viz. clauses 1 c. i. and 1 y.

11 defining ‘Rurban Vitrak’9 and ‘Location’10, respectively, and 8 A (n)

regarding ‘Showroom’11.

19. It would be convenient at this stage to look at Sl. Nos. 608 to 631

of the Advertisement, comprised in Part 2 (supra). In all but one

of the locations, LPG distributorships were on offer at the instance

of IOCL. Majorly, the locations have ‘Type of

Market/Distributorship’ as ‘Urban’ while the rest are ‘Rurban’. In

several of the locations advertised ranging between Sl. Nos. 608

and 631, except Sl. No.624 being the subject location, the

locations within brackets indicate the locality12 where the

concerned OMC13 intended to appoint an LPG distributor. As and

by way of example, one may profitably refer to Sl. Nos. 613 and

619. While both indicate Kolkata as locations, the former within

9 Rurban Vitrak: In this document, the word Rural Urban means LPG distributor located in ‘Urban Area’ and also providing service to the LPG Customers in specified ‘Rural Area’, generally covering all villages falling within 15 Kms. From the municipal limits of the LPG distributorship location and or the area specified by the respective OMCs. LPG distributors servicing this area will be called Rurban Vitrak. 10 Location – In this document, word location means the area identified for setting up of new LPG Distributor. It can be a locality/village/cluster of villages/town or city which is mentioned in the Notice for Appointment of LPG Distributors. 11 Showroom: (Applicable only for … Rurban Vitrak … locations and not for …) The applicant should ‘Own’ a suitable shop for Showroom of minimum size … as on the last date for submission of application as specified either in the advertisement or corrigendum (if any) at the advertised location i.e. within the municipal/town/village limits of the place which is mentioned under the column of ‘location’ in the advertisement. In case locality is also specified under the column of ‘location’ in the advertisement, the candidate should own … in the said locality.

In case an applicant has more than one shop … at the advertised location or locality as specified under the column of ‘location’ in the advertisement, the details of the same can also be provided in the application.

The applicant should have ownership as defined under the term ‘Own’ … Applicants having registered lease deed commencing on any date prior to the date of advertisement will also be considered provided the lease is valid for a minimum period of 15 years from the date of advertisement.

… 12 In terms of the definition of ‘Location’, a locality could also be a location. 13 Oil Marketing Company.

12 brackets has Salt Lake within Bidhannagar Municipality and the

latter China Town within Kolkata Municipal Corporation areas. We

read Salt Lake and China Town as the ‘locality’ in the location

Kolkata to sync locality with ‘Location’. It is also significant to note

another advertised location in the district of Hooghly. Sl. No. 610

indicates that in Nabagram (Konnagar), being the ‘Location’ within

Shrirampur block, IOCL intended to appoint an LPG distributor. We

take judicial notice of the fact that Konnagar is a town and also a

municipality in the district of Hooghly with Nabagram as the

locality14. However, significantly, Sl. No. 624 does not go beyond

indicating Haripal as the location.

20. Judicial notice is also taken of the fact that Haripal is a community

development block being part of Chandannagore sub-division, in

the district of Hooghly, West Bengal. It is true that as per the

Census 2011 Report downloaded from www.census2011.co.in,

[being Annexure R-1/1 of the counter affidavit of HPCL filed in this

proceeding], Haripal and Gopinagar are villages within Haripal

block but, for reasons more than one, we are not persuaded to

accept the claim of HPCL that it intended to appoint an LPG

distributor at Haripal village.

21. First, the stand taken in the written notes entirely demolishes the

plinth on which the impugned judgment rests. Reference to any

village or mouza, be it Haripal or Gopinagar, is rendered irrelevant

14 ‘gram’ in Nabagram is not to be mistaken for a village.

13 in the circumstances in the light of the ‘Type of

Market/Distributorship’ being shown as ‘Rurban’ in the

Advertisement under Column 7, which has to be given the

meaning attributed to ‘Rurban Vitrak’ in the Unified Guidelines. If

appointment of a distributor were intended for a village/mouza,

i.e., Haripal, it defies logic why instead of ‘Gramin Vitrak’ 15,

‘Rurban Vitrak’ was shown as the ‘Type of Market/Distributorship’.

It is also significant to note that if HPCL meant Haripal village as

the intended location for appointment of an LPG distributor, it has

not explained why there is no reference to any Gram/Village

Panchayat in Part 2 (supra) although such reference is available

under Part 1 (supra). This, we feel, is obvious because HPCL did

not intend the distributor to cater to any rural area but a ‘Rurban’

area which comprises of both rural and urban.

22. Secondly, the contention of HPCL that Haripal as shown both under

the columns ‘Block’ and ‘Location’ are not synonymous and that

Haripal should be read and understood as Haripal village appears

to be one advanced in desperation. The appellant, or for that

matter any other individual interested in the distributorship, could

not have possibly projected his own imagination and discover all

the facts and circumstances that were in the contemplation of the

15 Gramin Vitrak: In this document, the word 'Rural Area' will have the definition of 'Rural' as per census 2011. LPG distributorship located in 'Rural Area' will be called as Gramin Vitrak and will service the LPG Customers of the specified rural area. Generally it will cover all villages falling within 15 KMs from the boundary limits of the LPG distributorship location and or the area specified by the respective OMCs.

14 officers of HPCL to be fulfilled by him. At the cost of repetition,

Haripal under the column ‘Location’ appears to be unqualified. In

the present case, Haripal being the advertised location and without

mention of locality but with the ‘Type of Market/Distributorship’

being shown as ‘Rurban’, it is quite but natural for an individual to

perceive that land offered for the showroom, if not located

anywhere in the entire Haripal block, must at least be located

within certain identifiable limits having relation with Haripal, such

as the jurisdictional limits of Haripal Police Station. If indeed an

LPG distributor were intended to be appointed in village Haripal,

the ‘Type of Market/Distributorship’ would undoubtedly have been

shown as ‘Rural’ and included in Part 1 (supra) and not Part 2

(supra) of the Advertisement. Unless the relevant Part and the

columns thereunder of the Advertisement are interpreted in the

manner as above, the same would lead to utter absurdity.

23. The problem can be viewed from another perspective. While

completing our task, it is not for us to adjudge the nature of the

Advertisement or the intention of those who were responsible for

drawing it up, but whether the appellant’s candidature fell within

the scope of the ‘Location’ as indicated in the Advertisement.

24. Law is well settled that when an advertisement is made inviting

applications from the general public for appointment to a post or

for admission to any course or appointment of the present nature,

the advertisement constitutes a representation to the public and

15 the authority issuing it is bound by such representation. It cannot

act contrary to it. What bears heavy upon us is that, any person

of reasonable prudence could assume that since there was no

specific column for “Gram Panchayat” in Part 2 (supra) of the

Advertisement, which was present in Part 1, and the ‘Type of

Market/Distributorship’ was not ‘Rural’, complemented by the lack

of any detail – apart from Haripal in the “Location” without any

detailed particulars of the place, would imply that the location of

the concerned showroom was required to be in Haripal block and

any showroom on land located in Haripal block would fall within

the requirements of the Advertisement.

25. We have also kept in mind that the specific words ‘mouza’ and

‘village’ do not find any mention in the Advertisement and

reference to the definitions of the same in the Panchayat Act by

the Division Bench as well as by Mr. Sinha in course of his

submissions is misconceived. An order of cancellation of the

candidature of an applicant, which is the subject matter of

challenge in a court of law, has to be defended with reference to

the Advertisement and the pleadings and not with reference to

what was in contemplation of the authority issuing the

Advertisement. It is the norm that a court cannot be swayed by

the version of a party, which is not its pleaded case, and that it

should confine its decision to the points of assail/defence raised in

the pleadings. Any such argument ought to have been traceable

16 in the pleadings, and could not simply have been put before this

Court as an afterthought.

26. In a situation akin to this, had the appellant, or any intending

candidate, known in advance of such a narrower requirement,

then they would likely have been more vigilant in fulfilling such

criteria for the location of the distributorship. In arguendo,

unfortunately, it is HPCL’s cross to bear that the Advertisement, if

not incorrectly, is inadequately worded. It is not open to a writ

court, much less an appeal court, to direct the modification of any

clause/qualification in the Advertisement to suit the interest of any

particular candidate or the issuing authority even. Any such

direction would amount to re-writing the clause/qualification

mentioned in the Advertisement, which would be plainly

impermissible.

27. Turning to the added respondent, we can only sympathize with

him. If at all the added respondent had earlier been the victim of

an arbitrary rejection of his candidature by HPCL, he ought to have

challenged such action by instituting an appropriate proceeding.

Not having so instituted, the present appeal is not an appropriate

proceeding where this Court can look into his grievance and

address it.

Conclusion

28. For the reasons aforementioned, the first issue is answered in the

affirmative while the second in the negative.

17

29. The impugned judgment of the Division Bench is set aside and the

order of the Single Judge restored. The present appeal is,

accordingly, allowed leaving the parties to bear their own costs.

30. It is, however, made clear that apart from the questions that we

have decided, no part of our observations shall be treated as

expression of opinion on the further requirements/compliances, if

any, with regard to HPCL proceeding with the appellant’s

candidature for the LPG distributorship. The same may be decided

as per the applicable laws and guidelines by the competent

authority of HPCL.

31. Since the Advertisement is more than half a decade old, we hope

and trust that HPCL would henceforth proceed with expedition to

cater to the needs of its future customers.

32. Pending applications, if any, also stand disposed of accordingly.

..............................J. [DIPANKAR DATTA]

..............................J. [SANJAY KUMAR] NEW DELHI;

19TH MARCH, 2024.

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