Calcutta High Court (Appellete Side)
The India Trading Company & Ors vs Hindustan Petroleum Corporation Ltd. & ... on 28 June, 2018
Author: Tapabrata Chakraborty
Bench: Tapabrata Chakraborty
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28.06.2018
Item No.10
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W.P No. 8841(W) of 2018
The India Trading Company & Ors.
- Versus -
Hindustan Petroleum Corporation Ltd. & Ors.
Mr. Amber Majumdar,
Mr. Santanu Chakraborty
... For the petitioners
Mr. Surojit Nath Mitra,
Mr. Prasun Mukherjee,
Mr. Deepak Agarwal
... For the Respondents
Affidavit-of-service filed by the petitioners be kept on record. The subject matter of challenge in the present writ petition is a letter dated 4th May, 2018 issued by the respondent no.4 rejecting the petitioners' claim for participation in the road transportation tender 2018-23 for which Expression of Interest (in short, EOI) was invited by a notice dated 12th February, 2018.
Drawing the attention of this Court to Clause 2(xvii) of the said notice dated 12th February, 2018, Mr. Majumdar, learned advocate appearing for the petitioners submits that the respondents have stipulated different age limits for vehicles to be offered in the road transportation tender 2018-23. Such age requirement has been stipulated to be 5 years for Mumbai location, for NCR region it has been stipulated to be 7 years and for other locations it has been stipulated to be 12 years. Such stipulation of age criteria for vehicles is arbitrary and unlawful.
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Drawing the attention of this Court to a judgment delivered by the Hon'ble Division Bench of this Court in the case of Sri S.M Ghosh vs. Secretary, Ministry of Environment & Ors. (G.A 902 of 2004), Mr. Majumdar submits that though all vehicles being offered by the petitioners meet the pollution norms as detailed in the said judgment, the same had not been accepted for plying under the new tender. The respondents have sought to proceed in derogation to the directives issued by the Hon'ble Court and such action on the part of the respondents attempting to lay down additional guideline is arbitrary and illegal.
Per contra Mr. Mitra, learned advocate appearing for the respondents submits that the age criteria stipulated in the road transportation tender 2018- 23 is not a new condition and the same was also there in the earlier tenders floated in the years 2008 and 2012 and accepting such condition the petitioners participated in the same and as such, they are estopped from challenging the same condition as incorporated in the present tender process.
According to Mr. Mitra, the respondents have set the age criteria of vehicles for different locations. It is not a case that in respect of the same location the respondents have sought for vehicles having different age and as such the allegation that the respondents have acted arbitrarily is not sustainable.
He further submits that the judgment of the Hon'ble Division Bench, upon which reliance has been placed by Mr. Majumder, relates to pollution norms and supply of CNG in the State of West Bengal. The said judgment has no manner of application in the present case 3 In reply, Mr. Majumdar submits that the age criteria as stipulated in the road transportation tender 2018-23 is arbitrary and the petitioners' participation in the earlier tender process, do not debar them from challenging the same. In support of his arguments, Mr. Majumdar has placed reliance in the case of Central Coalfields Limited & Ors. vs. SLL-SML (Joint Venture Consortium) & Ors., reported in (2016)8 SCC 623, Coal India Limited & Ors. vs. Alok Fuels Private Limited & Ors., reported in (2010)10 SCC 157 and State of Punjab & Anr. Vs. Brijeshwar Singh Chahal & Anr., reported in (2016)6 SCC 1.
In the present case the respondents by the letter dated 12th February, 2018 had stipulated a condition under clause 2(xvii) which runs as follows:
"Age of the TTs: Age of vehicle offered should not exceed 5 years for Mumbai Location/7 years for NCR region / 12 years for other locations, as on (the Due date of the EOI). Age of TT shall be reckoned from the Date of Manufacturing (Month & Year)."
Indisputably, the age of the vehicles offered by the petitioners is more than 12 years. The vehicles, thus, do not fulfil the age criteria as stipulated in the notice dated 12th February, 2018. The judgment delivered in the case of S.M Ghosh (supra) has set down the pollution norms for vehicles run by diesel and for vehicles run by petrol and the same does not debar the respondents from setting the age requirement of the vehicles in furtherance of the object of greater efficiency in the management of the retail outlet operations. The representation submitted on behalf of the petitioners' was duly considered and the reasons towards non-acceptance of the petitioners' claim were detailed.
A decision is an authority for what it decides and not what can logically be deduced therefrom. The issue involved in the case of Central Coalfields Ltd. 4 (supra) was as to whether the employer had adhered to the terms of NIT and as to whether the level playing field concept was followed. Reliance was also placed upon the judgment delivered in the case of Coal India Limited & Ors. (supra) in support of the proposition that even in the domain of contractual matters the High Court can entertain a writ petition on the ground of violation of Article 14 of the Constitution of India. The said judgments are clearly distinguishable inasmuch as in the instant case the respondents have not deviated from the terms and conditions of the notice. In the case of State of Punjab (supra) the Hon'ble Court was deciding issues pertaining to the appointment of law officers and as to whether the policy adopted by the government for such appointment was arbitrary. The said judgment is thus clearly distinguishable on facts.
No mala fide can be attributed to the action of the authorities and it cannot be said that the authorities have acted in a manner which would benefit a private party at the cost of the authorities. The petitioner has failed to establish any arbitrariness or unreasonableness in the action of the respondents.
The Writ Court cannot transpose itself as an appellate authority and the scope of judicial review of the terms and conditions in award of contracts is very limited. The Court is primarily required to ascertain as to whether there has been any infirmity in the decision making process.
Applying the proposition of law to the facts of the present case, I am of the opinion that the petitioners are not entitled to the reliefs, as prayed for.
Accordingly, the writ petition is dismissed.
There shall, however, be no order as to costs.
5Urgent photostat certified copy of this order be supplied to the parties on compliance of all formalities.
(Tapabrata Chakraborty, J.)