PROTIK PRAKASH BANERJEE,J. - (1.) AST No.18 of 2017 is an intra-court appeal from the order dated January 24, 2017 passed in WP No. 1284 (W) of 2017. WP No.13893 (W) of 2016 [Ajay Kumar Saha--v--Bharat Petroleum Corporation Limited and Others] has been tagged with the appeal by an order dated February 7, 2018 passed in the said appeal, on the contention that fate of the writ petition is dependent upon the fate of the appeal. It appears that not only have the parties agreed to address us on the merits of the said writ petition but that leave was also granted to the writ petitioner in WP No.13893 (W) of 2016 (referred to hereinafter as "the said writ petitioner") to apply for addition of party to the said appeal, which the said writ petitioner did by way of CAN 1397 of 2018. Since the fate of the said writ petition admittedly depends upon the questions raised in the said appeal, we have heard the parties to the two proceedings extensively and hold that the said writ petitioner is a proper party so far as AST No.18 of 2017 is concerned; hence, we direct that he be added as a party to the appeal being AST No.18 of 2017. The allegations contained in CAN 1397 of 2018 are deemed not to have been admitted by any of the respondents/opposite parties by this order of addition of party. The department is directed to make necessary amendments and corrections in the cause title of the said appeal as also in the register. Since the said writ petitioners' learned advocate on record has already been served copies of the writ petition being WP No.1284 (W) of 2017, and the memorandum of appeal in AST No.18 of 2017, the stay application and the connected papers, the requirement of service pursuant to addition of party is dispensed with as are all formalities relating to service of notice of appeal on any of the respondents, since all are represented by their learned advocates and have graciously waived notice.
(2.) The parties agreed to address us first on the merits of WP No.13893 (W) of 2016 on the understanding that if the writ petitioner succeeds therein, automatically the intra-court appeal would stand disposed of, without there being any scope of passing any order in favour of the appellant in AST No.18 of 2017 (referred to hereinafter as "the appellant"), subject to the question of waiver by the said writ petitioner in WP No.13893 (W) of 2016 raised by Mr. Agarwal, learned advocate appearing on behalf of the appellant.
(3.) Briefly, the facts of the two cases are in a short compass and revolve around the fuzzy logic of the respondent authorities. The respondent no. 1, a nationalized oil company, published in the September 9, 2012 edition of the Bengali daily Ananda Bazar Patrika, an advertisement inviting applications for liquefied petroleum dealerships (referred to as "LPG dealership" hereinafter) from the general public. Several locations in the State of West Bengal were mentioned in the advertisement as the locations for which applications for distributorship of LPG were being sought by the respective oil companies mentioned in the said advertisement. Item No.64 of the advertisement was for the location of Chakdah in District Nadia, and it was described as for the market "UR" id est, urban rural. The writ petitioner (as also the appellant) applied for this location. It is common ground that the elucidation of the conditions on which such advertisement was being made were to be found in a brochure on Guidelines for Selection of Regular LPG Distributors applicable to all locations Advertised/Re- advertised after April 1, 2011. The respondent no. 1 submitted that location Chakdah meant Chakdah Municipality and that the writ petitioner had offered land in District Nadia, Police Station Chakdah, Gram Panchayat Tatla II, Mouza Lalpur, and not any land within Chakdah Municipality. Even though, the learned advocate for the respondent no. 1 attempted initially to mislead this court by relying upon the brochure of 2014, which only applied to those locations advertised from a date in 2014, on the basis of which its affidavit-in-opposition was also modelled, when we pressed him how he could do so in view of the applicability of the 2011 brochure, he agreed that it was the 2011 brochure which applied. He relied upon the provision, ultimately of Clause 7(vi) of the 2011 brochure to submit that the same clearly showed that it was intended that the plot of land offered for construction of the LPG showroom had to be within the limits of the location being the municipality and that was what the advertisement intended. This interpretation of the advertisement which was, frankly, alien to the language of the advertisement, and made mincemeat of the additional description of "Urban Rural", since rural areas are, on a plain reading, not comprised in a municipality, found favour with the learned Single Judge who dismissed the writ petition of the appellant who had also similarly applied for the same location with land not within Chakdah Municipality, but within the jurisdiction of the Additional District Sub- Registrar, Chakdah, that is to say, within that sub-registrar's jurisdiction. Clause 7(vi) referred to above, reads as follows: - "The applicant.... ******************************** Should own a plot of land adequate size (within 15 km from municipal/town/village limits of the location offered in the same State) for construction of godown for storage of 8000 kg of LPG in cylinders or ready LPG cylinder storage godown as on the date of application. As per Gas Cylinder Rules, 2004, the floor area of the storage shed for storing 8000 kg in cylinders should be 80 sq. metres. The length of the storage shed should not be more than 1.5 times width of storage shed. There should be minimum safety distance of 7 metres between storage shed and the boundary wall/fencing. The plot of land with minimum dimension of 26.15 metres by 27 metre is adequate. It should be freely accessible through allweather motorable approach road (public road or private road of the applicant connecting to the public road) and should be plain, in one contiguous plot, free from overhead live overhead power, transmission or telephone lines. Canals/Drainage/Nullahs should not be passing through the plot. The land for construction of LPG Godown should also meet the norms of the various statutory bodies, such as PWD/Highway Authorities/Town and Country Planning Department etc. In case an applicant has more than one suitable plot for construction of godown for storage of minimum 8000 kg of LPG in cylinders or ready LPG cylinder storage godown as on the date of application the details of the same can also be provided in the application." The respondent no. 1 informed the writ petitioner that the land offered by it was not found suitable on field verification and on March 3, 2015 gave the writ petitioner an opportunity to offer alternative sites/plots of land after informing him of his selection for the location as applied for by him. The writ petitioner, by a letter dated March 9, 2015 disputed the interpretation of locality advanced by the respondent no. 1 and offered four more plots of land, three of which were within the location Chakdah in Nadia, according to him, - and the last of which was within Chakdah Municipality, but it was under the ownership of the brother of the writ petitioner, who being married, was not under the brochure entitled to show lands owned by his brother as land offered by him, since family unit included brother's land only for unmarried candidates and for married candidates a family unit included only lands owned by the candidate, his spouse, and his unmarried sons or daughters and thus excluded a brother of a married candidate by the relevant clause in the brochure under Clause 7(iv). The three other lands offered were not within Chakdah Municipality though within fifteen kilometers thereof. Of course, the writ petitioner also asked the respondent no. 1 whether it would accept the said site offered by him belonging to his brother if the brother transferred the ownership of the land to him, by a letter dated April 12, 2016, but the respondent no. 1 did not respond to such offer till the date of hearing of this writ petition. When the respondents treated the candidature of the writ petitioner as cancelled without issuing any formal notice of rejection, for the aforesaid reasons, it selected the appellant in a subsequent draw of lots, as the next eligible candidate at the draw held on June 27, 2016 but since he too had offered land outside Chakdah Municipality, rejected his candidature also, against which WP No.1284 (W) of 2017 was moved, where the order dated January 24, 2017 impugned in the appeal was passed. ;