Chattisgarh High Court
Ashutosh Kumar Koshle vs Indian Oil Corporation Limited on 2 July, 2024
Author: Parth Prateem Sahu
Bench: Parth Prateem Sahu
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved for Order on : 10.06.2024
Order Passed on : 02/07/2024
WPC No. 3492 of 2023
1- Ashutosh Kumar Koshle, S/o. Shri Horilal Koshle, aged about
34 years, Caste- SC, R/o. House No. 625/1, Sakrelibhatha
Baradwar, Tahsil Baradwar, District Sakti (Chhattisgarh)
---- Petitioner
Versus
1- Indian Oil Corporation Limited, Through Its General Manager,
Indian Oil Bhawan, G-9, Aliyawar Jung Marg Bandra, Mumbai
(Maharashtra) 400051
2- M.P. State Officer, Indian Oil Corporation Limited, IOCL
Bhawan, 16 Arera Hills Jail Road, Bhopal (M.P.)
3- Chief Divisional Manager (Retail), Indian Oil Corporation
Limited, Raipur (Chhattisgarh), Indian Oil Bhawan, V.I.P. Road,
Rajeev Gandhi Marg, Raipur (Chhattisgarh)
4- Executive Director (Retail), M.P./C.G. Indian Oil Corporation
Limited, Bhopal (M.P.) Indian Oil Bhawan 16, Jail Road Arera Hills,
Bhopal (M.P.)
5- Shalini Sudha Maheshwar, D/o Shri Dayal Prasad
Maheshwar, Aged About 26 Years, R/o Village Sindhora, P.S. and
Tahsil Palari, District Balodabazar Bhatapara (Chhattisgarh)
6- State of Chhattisgarh,Through The Collector- Balodabazar,
District Balodabazar Bhatapara (Chhattisgarh)
---- Respondents
For Petitioner : Mr. Sourabh Sharma, Advocate For Respondents No.1 to 4 : Mr. Anand Shukla, Advocate For Respondent No.5 : Mr. Ravindra Sharma, Advocate For Respondent-State No.6 : Mr. Praveen Das, Dy.A.G. 2 Hon'ble Shri Justice Parth Prateem Sahu C A V ORDER
1. Petitioner has filed this writ petition seeking following relief
(s) :-
"10.1. That, this Hon'ble Court may kindly be pleased to issue writ/writs, order/orders quash the LOI (letter of intent) issued in favour of the private respondent with respect to advertised location/stretch at Sl. No. 577 Katgi on Kasdol-Gidhouri road of National Highway No. 130B for appointment of regular dealer to run retail outlet reserve for Scheduled Caste Category advertised on 14/12/2018 (Annexure-P/1).
10.2. That, this Hon'ble Court may kindly be pleased to issue writ/writs, order/orders quashing the entire selection process for advertised location/stretch at Sl. No. 577.
10.3. That, this Hon'ble Court may kindly be pleased to issue writ/writs, order/orders holding that the petitioner is fully eligible for selection as a Group 2 applicant for advertised location at Sl. No. 577.
10.4. That, this Hon'ble Court may kindly be pleased to issue writ/write, order/orders holding that selection of private respondent is arbitrary and illegal de hors the brochure for selection of dealers.
10.5. That, this Hon'ble Court may kindly be pleased to issue writ/writs, order/orders, direction, directing the respondent-Corporation to consider the candidature of petitioner for selection in a Group 2 by placing the private respondent in Group 3 holding that offered land by the private respondent on his application does 3 not fulfill the required criteria as per advertisement and brochure for selection.
10.6. That, this Hon'ble Court may kindly be pleased to issue writ/writs, order/orders, direction, directing the respondent-Corporation to consider the candidature of petitioner for selection in a Group 2 by placing the private respondent in Group 3 holding that offered land by the private respondent on his application does not fulfill the required criteria as per advertisement and brochure for selection.
10.7. Any other relief which may deems fit may also be awarded along with cost of the petition."
2. Facts relevant for disposal of this petition are that respondent No.1 issued an advertisement for appointment of Regular/Rural Retail Outlet (Petrol Pump) Dealership vide Annexure P-1. Petitioner also submitted an application for his appointment as dealer of Regular Retail Outlet at Katgi on Kasdol - Giodhouri Road on N.H. -130-B, District Balodabazar reserved for SC category. Respondent No.1 considered all the applications with respect to aforementioned locations and by draw of lots selected respondent No.5. Letter of Intent (In short 'LOI') was also issued in her favour. Issuance of LOI in favour of respondent No.5 is under challenge in this writ petition on the ground that land offered by respondent No.5 for establishing retail outlet was not fulfilling the criteria of land as prescribed by respondent No.1, of the norms prescribed by the National Highways Authorities.
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3. Learned counsel for petitioner would submit that petitioner after coming across the notice/advertisement issued by respondent No.1 for allotment of dealership of retail outlet (petrol pump) at different locations including the locations at Katgi District Balodabazar has submitted his application along with others. The allotment of dealership retail outlet is upon applicant fulfilling all the norms as prescribed in the brochure of Selection of Dealers for Regular & Rural Retail Outlets. According to the requirements, specification of the land for opening of retail outlet at locations No.577 i.e. Katgi on Kasdol
- Gidhouri Road on N.H. 130B should have been 35 sqm. wide X 45 sqm. deep. Petitioner as also respondent No.5 have submitted firm offer for suitable piece of land for purchase or long term lease for a period of minimum 19 years 11 months or as advised. The land offered by respondent No.5 was inspected by Officers of respondent No.1 and upon inspection of the site, it was found that the land offered by respondent No.5 was not meeting the specification i.e. norms of National Highway Authority of India (NHAI). Respondent No.1 overlooking the objection of the Field Verification of Credential (FVC) had issued LOI in favour of respondent No.5. Further respondent No.1 had advised respondent No.5 that he may seek relaxation of norms under the National Highway Act from competent authority which shows that respondent No.1 was having soft corner for respondent No.5, extending undue favour, and therefore, instead of rejecting the 5 application submitted by respondent No.5 and continuing further, considering the applications of remaining candidates had accepted the offer of the other suitable land in contravention of the clause of brochure. The action on the part of respondent No.1 granting undue favour to respondent No.5 is bad in law and against the policy and norms prescribed for allotment of retail outlet dealership. In support of his contention he referred to the clauses of brochure in particular Clause 14, 15 and 16.
4. Learned counsel for petitioner also pointed out that as per the land evaluation report, the land offered by respondent No.5 was not found to be suitable meeting the norms as required but even then extending undue favour, LOI has been issued in favour of respondent No.5 and therefore, the LOI issued in favour of respondent No.5 be set-aside and a direction be issued to authorities to consider the candidature of petitioner in accordance with clauses of brochure placed on record as Annexure P-3.
5. Mr. Anand Shukla, appearing on behalf of respondents No.1 to 4 would submit that writ petition is bereft of merits, which is liable to be dismissed. Petitioner has participated in the proceedings for allotment of retail outlet (petrol pump) and upon failing to succeed to get the retail outlet allotted in his favour, writ petition is filed. The entire proceedings of allotment of retail outlet petrol pump is strictly in accordance 6 with law. Under Clauses of brochure, there is Note- 3 under Clause-4, which specifies for "opportunity to offer alternate land after FVC/issuance of LOI". Considering the fact that there was some objection initially with respect to first land offered by respondent No.5 for opening retail outlet, he was provided an opportunity to offer an alternate land. Respondent No.5 subsequently offered alternate land and thereafter it was accepted. Respondent No.5 was also issued work order and he had already started the construction work. In support of aforementioned contention, he referred to Note- 3, Clause No.4 and 5 of brochure for selection of dealers for regular and rural outlets dated 24.11.2018. He also contended that the candidature of person who is not having any land in his favour is also to be considered and even if the Court comes to the conclusion that first land offered by respondent No.5 was not fulfilling the criteria/norms then also, petitioner can be provided an opportunity to offer alternate land after physical verification of credential, after issuance of LOI. Respondent No.5 has already started construction work and some construction has been done as reflecting from the order-sheet dated 04.08.2023. The Court in exercise of jurisdiction under Article 226 of Constitution of India are having limited jurisdiction to interfere in contract matters. As the agreement between respondent No.1 and respondent No.5 has already been executed, work order was issued, based upon which, respondent No.5 has started leveling work, this Court may 7 restrain from interfering with the decision/order of allotting the dealership of retail outlet (petrol pump) to respondent No.5.
6. Learned counsel for respondent No.5 adopts the submission made by learned counsel for respondent No.1 to 4 and would further submit that respondent No.5 submitted an application for allotment of dealership of retail outlet (petrol pump) and became successful and therefore, after entering into the contract, no order cancelling the allotment of dealership of petrol pump can be made.
7. I have heard learned counsel for parties and also perused the documents placed on record.
8. Before proceeding further I would like to extract certain clauses of brochure for selection of dealers for regular and rural retail outlets.
9. Clause-4 of brochure provides for eligibility criterial for individual applicants - proprietorship/ partnership. Common eligibility criteria for all categories applying as individual (as on date of application unless mentioned otherwise). Clause 4 (v) talks of land (applicable to all categories) and is divided into three groups. In Group-1, persons are included who are having suitable piece of land in the advertised location/area either by way of ownership/long term lease for a period of minimum 19 years 11 months or as advertised by the OMC. Group-2 deals with the applicants having firm offer for a 8 suitable piece of land for purchase or long term lease for a period of minimum 19 years 11 months or as advertised by the OMC. Group-3 deals with applicants who have not offered land in the application.
10. Clause 4 (m) provides for verification of the supporting documents submitted by the selected candidate, post selection, will be carried out at the time of Scrutiny/Field Verification of Credentials.
11. Respondents No.1 to 4 along with their reply have submitted formate for land evaluation by the Land Evaluation Committee (LEC) and found the land offered by respondent No.5 to be non-suitable and in the details it is mentioned that NHAI norms not meeting, so 100 days time was given for getting NHAI clarifications for finalizing site further. The next reason which is assigned is "two roads were found first at 100 m and second at 250 m. intersecting N.H. 130-B while going towards Kasdol. This evaluation of land of respondent No.5 was done on 25.11.2019 by three members Committee (Annexure R-1-
3). As argued and not disputed by respondents that respondent No.5 has not submitted any clarification or any order of relaxation of norms from the office of NHAI. Even on the specific query put to learned counsel for respondents No. 1 to 4 and respondent No.5, whether any documents/letter issued by NHAI clarifying or relaxing the criteria is submitted by respondent No.5, they submitted that no such document is 9 available in record and counsel for respondent No.5 admitted that as per his instruction no such documents has been obtained from NHAI.
12. Perusal of the document enclosed at Page-23 along with reply of respondents No.1 to 4, which is part of Annexure R-1-3 would show that respondent No.5 submitted an application on 09.03.2021 for changing the land, offered other land which also is in contravention of the clauses of the Note-4 under Clause-4 of brochure. Note No.4 (i) specifically provides that in case selected candidate (after clearing FVC) avails the opportunity to offer alternate land before issuance of LOI, the opportunity will not be available to the candidate post issuance of LOI. The language of aforementioned clause of brochure clearly specifies that offering alternate land is not permissible after issuance of LOI in favour of any of applicant.
13. As per the pleadings made in the rejoinder by petitioner, the first LOI was issued in favour of respondent No.5 on 08.01.2021 on the land offered, details of which is mentioned in application submitted pursuant to advertisement. The facts pleaded in the rejoinder is not specifically disputed by counsel for respondents by way of pleadings or during the course of arguments before this Court and therefore, when once LOI was issued on 08.01.2021, the subsequent application to offer alternate land thereafter on 09.03.2021 could not have been considered in view of the specific Clause-4, under Note-4 (i). 10
14. Note- 3 under Clause-4 relied upon by learned counsel for respondents No.1 to 4 that even after issuance of LOI to the selected candidate, if he would like to offer an alternate land due to whatsoever reason, such land can be considered by OMC subject to the alternate land meeting all specifications and is within the advertised location/stretch is misconceived. Note -3, provides an opportunity to offer alternate land after FVC/issuance of LOI will come into play only when applicant/applicants meets all the specification as laid down in advertisement and on the basis of which LOI has been issued or proposed to be issued, intends to offer alternate land, subject to alternate land meeting all the specifications as laid down in the advertisement, is within advertised location.
15. In the case at hand, land which was earlier offered by respondent No.5 does not meet the specification as required, which is also reflected from Annexure R-1-1 filed along with return by respondents No.1 to 4. The said documents is a letter written by respondents No.1 to 4 to respondent No.5. Relevant portion of the said letter is extracted below for ready reference :-
"We wish to inform you that the Land Evaluation Committee has the following observation with respect to your offered land.
* NOT MEETING NHAI NORMS, TWO ROADS WERE FOUND, 1ST AT 100M AND 2ND AT 250M INTERSECTING NH-130B WHILE GOING 11 TOWARDS KASDOL You are advised to seek clarifications from NHAI on the suitability of your offered land for putting up the Retail Outlet with regard to the observations mentioned above and submit the clarification to us by 14-Apr-2020.
In case if you fail to obtain clarification as noted above from NHAI and submit the same to our office at the address mentioned below by 14-Apr-2020, your offer is liable to be rejected."
16. From bare perusal of the extracted portion of the letter written to the respondent No.5 informing that land offered by her does not meet the norms of NHAI and would further clearly mentioned that in case of failing to obtain clarification as noted above from NHAI and submit the same to the office of respondents No.1 to 4 at the address mentioned below by 14.04.2020, the application of respondent No.5 is liable to be rejected. As submitted by counsel for respective respondents that no such clarification letter of NHAI was submitted. Further petitioner has submitted documents along with an application for taking documents and subsequent event on record as Annexure P-17 obtained under Right to Information Act, in which the Public Information Officer-Executive Engineer, National Highway Division -1, Public Works Department, Raipur has issued information that no proposal is received of any petrol pump with respect to the land bearing Kh. No. 1555. Even it is not the case of the respondents before this 12 Court that the respondent No.5 submitted any application and got the order of the competent authority of NHAI.
17. Clause -14 (H) of brochure/guidelines provides that in case the land of selected candidates does not found to be suitable for establishing the retail outlet (petrol pump), the applications of remaining applicants are to be considered. Relevant portion of Clause 14 (H) is extracted below for ready reference.
"In case land is not found suitable, the selected candidate will be informed about his ineligibility and selection process will be continued with the balance applicants. However, the candidate would be considered for selection along with Group 3 applicants and intimation will be sent to the candidate."
18. From the aforementioned facts of the case, submission of learned counsel for respective parties, documents available on record and the clauses of brochure, it is clearly appearing that respondents No.1 to 4 had extended undue favour to respondent No.5 and instead of rejecting the application submitted by respondent No.5 for her appointment as dealership for retail outlet (petrol pump) at Katgi on Kasdol - Gidhouri Road on N.H. 130-B on the ground of not fulfilling the preconditions as provided under guidelines for allotment of retail outlet, with respect to Group -II applicants, has permitted respondent No.5 to offer alternate land and also accepted the same contrary to the Note -3 and 4 under Clause - 4 of 13 brochure, which is per- se arbitrary.
19. The law with regard to interference in contractual or tender matters, is well settled by Hon'ble Supreme Court, that Courts have to keep restraint and caution in interfering in the contractual and tender matters as also decision taken by tenderer/employer in awarding contract or allotment. The principles of judicial review can be exercised only to prevent arbitrariness or favoritism or when larger public interest is involved.
20. Hon'ble Supreme Court in case of Jagdish Mandal Vs. State of Orissa & Others, reported in (2007) 14 SCC 517 has observed that Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made "lawfully" and not to check whether choice or decision is "sound".
21. In case of AFCONS Infrastructure Limited Vs. Nagpur Metro Rail Corporation Limited & Another, reported in (2016) 16 SCC 818, the Hon'ble Supreme Court observed that threshold of mala fides, intention to favour someone or arbitrariness, irrationality or perversity must be met before the constitutional Court interferes with the decision-making process or the decision.
22. Hon'ble Supreme Court in the matter of Consortium of 14 Titagarh Firema Alder S.P.A.-Titagarh Wagons Ltd., through Authorised Signatory v. Nagpur Metro Rail Corporation Limited (NMRCL) through its General Manager (Procurement) and Another reported in (2017) 7 SCC 486, has observed that in exercise of powers of judicial review the Court can interfere in contractual or tender matters only to prevent arbitrariness of favoritism and the award of contract for any collateral purpose.
23. The observation made by Hon'ble Supreme Court in case of AFCONS Infrastructure Limited (supra) has been reiterated by Hon'ble Supreme Court in its recent decision in case of Silppi Constructions Contractors Vs. Union of India & Others, reported in (2020) 16 SCC 489.
24. Reverting back to the facts of the case, from the discussion made in the preceding paragraph, it is apparent that respondent No.1 has published an advertisement for allotment of dealership of the Retail outlet (Petrol Pump) at the location, subject matter of writ petition. The allotment of petrol pump is based on the eligibility criteria as prescribed under Clause-4 of the brochure for selection of dealers for regular and rural retail outlets enclosed as Annexure P-3. Respondent No.5 could not meet the requirements of land as it could not fulfill the requirements of NHAI norms. Respondent No.1 has guided respondent No.5 to obtain the clarification/no objection from NHAI in accordance with the law, however, respondent No.5 15 did not file any application seeking clarification/NOC from NHAI, even it is not argued and submitted before this Court during the course of hearing.
25. As discussed above, after completion of stage of evaluation of the land and issuance of LOI, no permission can be granted for offering alternate land, which can be gathered from the language of Clause 14 (H) of Brochure, whereas in the case at hand respondent No.1 contrary to the guidelines/brochure (Annexure P-3) for selection of dealers for regular and rural retail outlets has accepted the offer of alternate land after issuance of LOI, which shows that respondent No.1 acted in arbitrary manner extending undue favoritism to respondent No.5.
26. For the aforesaid reasons, as discussed, as also in light of the the decisions of Hon'ble Supreme Court, the action on the part of the respondent No.1 in allotting the dealership of retail outlets (petrol pump) and subsequent action of respondent No.1 being arbitrary and granting undue favour to respondent No.5, is not sustainable and therefore selection of respondent No.5 and all subsequent orders are quashed.
27. As the brochure specifies the procedure to be adopted in case the selected candidates does not found to be suitable for establishing the retail outlet, respondent No.1 is directed to consider the application of remaining applicants in terms of Clause 14(H) of brochure/guidelines (Annexure P-3) and to 16 complete the proceedings for appointing dealer for retail outlet (petrol pump) as per advertisement (Annexure P-1).
28. Accordingly, the writ petition is allowed in part.
Sd/-
(Parth Prateem Sahu) Judge Balram