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/Readvertised 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 SubRegistrar, 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.
4. We are afraid that the said clause does not bear the interpretation which the respondent no. 1 seeks to impose upon it. Even if we ignore the screaming hint of the term "Urban Rural" in the description of the location, the elucidation in the brochure clearly shows that what the respondent no. 1 intended to mean, by saying that the location was in Chakdah in District Nadia, was only that the land offered must be within fifteen kilometers from the municipal or town or village limits of the location in the same State. In most places in West Bengal, like the rest of India, the settlements of people are not only or even mainly within municipal areas. Towns not qualifying for a municipality under the laws in force there and villages having gram panchayats are also settlements where such LPG Distributorships are essential and for that reason the said clause was framed so that people in less developed areas also have easy access to LPG. The fact that the description is "Urban Rural" in conjunction with this clause, is to our mind, the clinching argument that the location of Chakdah does not refer to "Chakdah Municipal Area" but also those villages and towns which are within the police station Chakdah or even the sub-registrar's office Chakdah and are within fifteen kilometers from the municipal, or village or town limits in Chakdah area. It is the admitted position that there is no mouza or village called Chakdah and therefore if the location is Chakdah, it has to take its flavour from both the description 'Urban Rural' as also the above condition. The description is in fact not exclusive, in the sense, by using the phrase within 15 km from municipal/town/village limits of the location offered in the same State, the towns and villages in Chakdah are not excluded merely because municipal limits are also mentioned as the place from where the distance is to be calculated. We are told that there is no village or mouza by the name Chakdah and from the District Statistical Handbook, 2014, Nadia, available on the internet from the Department of Statistics and Programme Implementation, State of West Bengal, those areas within the jurisdiction of Chakdah Police Station, being both Chakdah Municipality and Chakdah CD Block, in the subdivision of Kalyani, are accepted as being in Chakdah and thus our finding above is borne out by the records and the physical reality of the place in respect of which the advertisement was issued.
5. As a result, all the contentions of the respondent fail. The decision dated January 24, 2017 was rendered without considering the above relevant factors including the true and proper interpretation of clause (vii) of the 2011 brochure and also the significance of "Urban Rural" as description of the type of location. In fact, by holding that the respondent no. 1 was entitled to give its own interpretation to the terms of the advertisement, without reference to and even contrary to the phrases used in the said 2011 brochure, the learned Single judge erred both in fact and law. Accordingly, we disapprove of the judgment under appeal and hold that the term "location" is not limited to a municipality in the location but includes also areas which are within 15 km of the village or town or the municipal limits of the said location, so long as those areas are not within 15 kms. from the local limits of any municipality or town or village comprised in another advertised location.
6. Having said that, we now come to the thorny question of the reliefs to which the respective parties are entitled. Normally, if we disapprove of an order under appeal, we set aside the order and either send back the matter on remand if there is something else to be decided, or reverse the order if nothing else is left after our judgment. In the instant case, after we have held as we have done, there is nothing left for the learned Single Judge to decide in either writ petition. However, reversing the order impugned, in this case, would mean that we will be upholding the selection of the appellant and directing the respondent no. 1 to treat the land offered by it as within the advertised location and issue a letter of intent to him. To do that we will also have to hold that the cancellation of selection of the writ petitioner in WP No.13893 (W) of 2016 and the deemed rejection of his candidature on the ground that he had not offered any site within Chakdah Municipality was rightly done by the respondent no. 1, This we cannot do since it is contrary to our finding as above. Without upholding the rejection of the said writ petitioner's candidature and selection, however, no relief can be granted to the appellant since it had been selected only on June 27, 2016 by a letter dated June 28, 2016, on the failure of the said writ petitioner's candidature and/or application dated October 10, 2012 for LPG Distributorship at the location in Chakdah, though no order for rejection of the candidature was ever served on the writ petitioner.
7. At this stage, Mr. Ram Anand Agarwal, learned advocate appearing on behalf of the appellant, submits that it is possible to uphold the rejection of the writ petitioner's candidature and thus grant relief to the appellant, on the ground that the writ petitioner had waived his right to his selection intimated to the writ petitioner on March 3, 2015 by the respondent no. 1, by his letter dated March 9, 2015 by which he had offered alternative lands, as requested by the respondent no. 1. At the very least, the said writ petitioner is estopped from contending otherwise, according to Mr. Agarwal. Properly speaking, this submission ought to have come from the respondent no. 1, since the respondent no. 1, in its affidavit-in-opposition to WP No.13893 (W) of 2016, took a specific point in this regard, which the writ petitioner deliberately omitted to deny or deal with, in his affidavit-in-reply thereto. This shall appear from the following pleadings: -
Part of paragraph 7, of the affidavit-in-opposition affirmed by Vijapurapu Rama Sudhakar on February 9, 2016: -
"****It is submitted that the petitioner acted on the basis of the communication made by the respondent through its letter dated 03.03.2015 and had supplied land within the Chakdaha Municipality. In view of the same the instant writ petition challenging the rejection of the offered land is absolutely not maintainable. It would further appear from the paragraphs under reference that the petitioner on one hand is contending that the lands offered by him although are not within the Municipal limits of Chakdaha but within Chakdaha Township, and as such eligible for constructing the showroom, however, at the same breath contends that if he is allowed he may get the land owned by his brother under Chakdaha Municipality transferred in his name for the purpose of constructing the showroom thereon."
Part of paragraph 18 of the affidavit-in-reply affirmed answering this specific allegation, by Ajay Kumar Saha on February 9. 2018 reads as follows: -
"That with respect to the statements/contentions made in paragraph no.7, be it submitted that it is a fact that the rejection of the land offered by the petitioner on the ground that the same is not within the municipal limits of Chakdaha is arbitrary, whimsical and unfair or that the writ petition challenging the rejection of the offered land is absolutely not maintainable or that the there are any contradictory submissions on the part of the petitioner as alleged or at all."
This was in answer to paragraph 11 of the writ petition, which is set out hereinbelow: -
"11. Your Petitioner states that much surprised with the letter of the Respondent No.6 dated 03.03.2015, your petitioner replied to the same vide his letter dated 09.03.2015, inter alia, contending that neither the advertisement inviting applications nor in the brochure it is anywhere mentioned that the proposed land has to be within the limits of Chakdaha Municipality and explained that Chakdaha township is consisted of several Gram Panchayats, Talta No.2 Gram Panchayat being very much within the Chakdaha Township, being under Police Station and Post Office : Chakdaha, BL&LRO Office & ADSR Chakdaha and thus the rejection of the proposed land as not being within Chakdaha is arbitrary. However, since your Petitioner had invested a lot of money, time and hope for the LPG Distributorship, he also provided details of 4 (four) alternative plots within Chakadaha Township, the same being owned by his family unit. Be it mentioned that out of the four alternative plots, the first three were under respective Gram Panchayats very much within Chakdaha Township, and the fourth plot was under Chakdaha Municipality."
8. However, the respondent no. 1 did not raise this question before us when the matter was being heard. Instead, the appellant raised this question, not having used any affidavits to the writ petition and not having used any affidavit to the application for addition of party. Mr. Agarwal simply submitted that on the facts of the case and documents on record, it would be clear that the petitioner had waived his right to the selection communicated to him by the letter dated March 3, 2015, by offering alternative sites and at any rate, was estopped by conduct and the records from contending otherwise.
9. Let us see how far this submission can be sustained by the records, for the moment assuming that the appellant is entitled to raise this point. It is true that in answer to a specific allegation made by the respondent no. 1 that the petitioner had acted on the communication dated March 3, 2015 by offering alternative lands alleged by him, inter alia, within Chakdah Municipality, the writ petitioner had chosen not only not to deny the said allegation specifically but not even generally in the relevant paragraph 18 of the affidavit-in-reply. He had in fact begun that paragraph as a submission, though, thankfully, it was affirmed as being true to his knowledge. Yet there is no denial of the allegation of the fact alleged by the respondent no. 1 which is the foundation of the defence of the respondent no. 1 on the ground of waiver not raised by it before us. It is equally true, both by reason of the principles underlying Order VI and Order VIII of the Code of Civil Procedure and the general rules of pleading, that a specific denial by the writ petitioner and the assertion as truth of something denied by the respondent, is the only way that a denial is made in the eye of law. The principles applicable to a writ petition, in contra distinction of those in a civil suit including grounds instead of written arguments and annexures in place of evidence, will appear from a minute reading of Bharat Singh and Others-v-State of Haryana and Others, (1988) AIR SC 2181. If we go only by these principles of drafting, which are nowadays observed in the breach, then of course on this anvil, the writ petition being WP No.13893 (W) of 2016 will fail, because unfortunately the petitioner has not specifically denied the allegation made by the respondent no. 1 in the affidavit-in-opposition in this regard in his affidavit-in-reply.
10. However, sitting in the appellate jurisdiction of this Court in respect of matters arising out of its constitutional writ jurisdiction, it is not only formalism and the pleadings which we are required to consider. The Hon'ble Supreme Court has laid down, in no unclear words, inter alia in the decision in the case of S.B. Naronah-v-Prem Kumari Khanna, (1980) AIR SC 193, inter alia, that
"pleadings are not statutes and legalism is not verbalism. Common sense should not be kept in cold storage when pleadings are construed, law should not be stultified by courts by sanctifying little omission as fatal flaws. Parties win or lose on substantial questions, not on 'technical tortures' and courts cannot be 'abettors'."
11. The Hon'ble Supreme Court has also laid down, in the case of Smt. Manjushri Raha and others -v- B.L. Gupta and Others, (1977) AIR SC 1158, inter alia, that
"pleadings have to be interpreted not with formalistic rigour, but with latitude or awareness of low legal literacy of poor people."
12. Applying the said ratio to the present case, we think it would subserve the interests of substantive justice if we consider the pleadings, including the writ petition, the affidavit-in-reply and most importantly, the documents relied upon by the parties and their contents, scope and effect, to come to a conclusion as to whether the writ petitioner in fact intended to waive his rights under the selection of March 3, 2015, by his letter dated March 9, 2015 and whether, on a reasonable interpretation of the contents of the letter dated March 9, 2015, it would be likely for any other reasonable man to think that the writ petitioner had done so. We hold this also because the point was not raised by the respondent no. 1 in WP No.13893 (W) of 2016 during arguments, but by the appellant who had used no pleadings in respect of the application for addition of parties but was relying upon these documents and their contents to allege that the writ petitioner had waived his rights, as indicated in paragraph 9 above.
13. The letter dated March 9, 2015, written by hand by the writ petitioner speaks volumes. The relevant portion thereof is extracted hereinbelow: -
For your kind information I received a letter that you were (sic) written dated 03.03.2015 according to your information you have needed showroom land for L.P.G only Chakdaha Municipality limits. But as per your advertisement location (U.R.) area was only Chakdaha, NADIA. There is no specific located area of Chakdaha (like Mouza). Chakdaha means as per its police station is 15 gram panchayat and 1 municipality. Other hand, as per its P.O., Chakdaha means lalpur Mouza, Kanthalpulli Mouza, Kamalpur Mouza, Chatimtola Mouza, Jaykrishnapur Mouza, Uttarghosh Para Mouza, Jasra and K.B.M. area. But you have denoted (U.R.) Chakdaha means only its Municipality area. This information is right or wrong please you judgment. So I submit such alternative land for your LPG Showroom purpose."
Then the particulars of alternative lands were given followed by this conclusion: -
"I hope that you will be satisfied about my given Information and chose one of those land for suitable for LPG Showroom."
14. It would be seen therefore, that the contents of the letter dated March 9, 2015 do not contain an abject acceptance of the contention of the respondent no. 1, that the advertisement pertained to Chakdah Municipal area. On the contrary, it was at some pains to point out that the advertisement merely indicated Chakdah in District Nadia, and this included, if Chakdah Police Station was the determinator, then fifteen gram panchayats, one municipal area and all of them comprising one township and if the post office was the determinator, then the named mouzas; but the important point is, that it reiterated that in the absence of there being any Chakdah Mouza, and the advertisement being silent about Chakdah Municipality, a plain reading of the advertisement did not yield the result at which the respondent no. 1 was trying to arrive. The offer of alternative sites, three of them in the panchayat areas and mouzas comprised in Chakdah Police Station or post office, clearly shows that there was no departure from this stand by the writ petitioner. The other, and last plot offered as an alternative, did not belong to the writ petitioner. At any rate, the writ petitioner was acting on the original selection of March 3, 2015 and did not, in fact, resile from that.
15. The respondent no. 1, however, by its letter dated April 5, 2016 did a remarkable thing. It reiterated that the petitioner was selected for Regular Distributorship of the Chakdah location; it did not deal with the objection of the petitioner and the dispute raised by it except by writing that
"the subject land was not located within Chakdaha Municipality limits as a result of which the land could not be considered for construction of LPG showroom as per the terms and conditions mentioned in the advertisement/brochure. As per the guidelines you were requested to submit the details of alternate land (if any) in the advertised location".
This by itself shows that the objections raised by the writ petitioner as to the meaning forcibly ascribed by the respondent no. 1 to the location Chakdah in Nadia, which it did not bear in plain language, had not been addressed by the respondent no. 1 but the respondent no. 1 was insisting that an alternate site be offered within the advertised location, without dealing with the above objection of the writ petitioner. This itself is unreasonable, but once we look at the rest of the letter, we find that far from cancelling the selection, the respondent no. 1 continued to act as if it was still in force, by asking the writ petitioner to offer another alternative site within seven days from receipt of the letter, after recording that the lands owned by the writ petitioner and offered by him as an alternative were still not within the limits of Chakdah Municipality, which shows that the writ petitioner was consistent in its stand.
16. To our mind, the above records do not show that the writ petitioner had waived his rights under his selection dated March 9, 2015 nor intended to have given up his right to contend that the location Chakdah in Nadia advertised did not mean only the area comprised within Chakdah Municipality limits. Nor do these records show that the respondent no. 1 thought that the writ petitioner had done so or that any other reasonable man would think so, after considering the same records. Therefore, to answer the question raised above, it is clear that there was no waiver as contended by
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the appellant though not pleaded by it, nor as pleaded by the respondent no. 1 though not raised by it during arguments. So far as the question of estoppel is concerned, from the above it is very clear that neither party changed its position to its material prejudice by relying upon what the other had said and accepting it neither moved an inch from his own respective contention, and the offering of alternative sites owned by the writ petitioner outside the municipal limits of Chakdah Municipality, and the respondent no. 1 not accepting it, cannot possibly operate as an estoppel against the petitioner contending that the location advertised was Chakdah in Nadia and not Chakdah Municipality. 17. In that view of the matter, we are firmly of the opinion that the contentions agitated in the writ petition being WP No.13893 (W) of 2016 that the location Chakdah in Nadia (UR) advertised at item No. 64 of the advertisement published on September 9, 2012 was not just the location in Chakdah Municipality area, but also areas comprised in Chakdah Township or within Chakdah Police Station or within the mouzas comprised in Chakdah Post Office area, are correct, and the contentions of the respondent no. 1 to the contrary, are not correct, on the face of the advertisement, the description (UR) meaning Urban and Rural and the relevant clause of the 2011 brochure relied upon even by the respondent no. 1. A municipality in India, it is trite, is not rural. 18. As a result there shall be an order directing the respondent authorities to take steps in furtherance of the selection of the writ petitioner for LPG Distributorship in Chakadah in Nadia, on the basis of his application dated October 10, 2012 accepting the site offered by him thereby, without rejecting it on the ground of it being outside the limits of Chakdah Municipality, if otherwise suitable as far as dimensions and area are concerned, and give effect thereto expeditiously but no later than eight weeks from the date of communication of this order. No effect or further effect shall be given to the selection held on January 31, 2017 whose results were expressly directed to be kept in a sealed cover and which were directed not to given effect to, by the order dated February 8, 2017. As a result of this decision, though the contentions of the appellant in AST No. 18 of 2017 and ASTA No. 3 of 2017 also succeed to the extent of the interpretation of the location advertised, because the appellant was selected for the same location Chakdah in Nadia in place of the writ petitioner after a subsequent draw, no effect can be given to the selection of the appellant and therefore, the victory of the appellant is destined to remain pyrrhic. 19. The writ petition WP No. 13893 (W) of 2017 is therefore allowed, as is CAN 1397 of 2018 as stated in paragraph no.1 above and AST No. 18 of 2017 and ASTA No. 3 of 2017 are disposed of as aforesaid. There shall be no order as to costs.