Calcutta High Court (Appellete Side)
For The vs Educomp Datamatics Ltd on 21 June, 2010
Author: T. K. Gupta
Bench: T. K. Gupta
1
M.A.T. 318 of 2010
11 21.06.10 M.A.T. 318 of 2010
Re:- An appln. for Stay (CAN 2612/10)
Mr. Pradosh Kumar Mallick,
Mr. M. M. Mukherjee,
Mr. Tapan Kumar Mitra,
Mr. Farhan Gaffar.
... For the Appellants.
Mr. I. D. Ghosh,
Mr. S. P. Dalapati.
... For Respdt. No. 1
Instead of hearing the application for stay,
with the consent of learned counsel for the parties,
we have taken up the appeal itself for hearing by
treating the same as on day's list.
The appeal is directed against the order
dated 30th October, 2009 of the learned Single Judge
by which the learned Single Judge allowed the writ
petition of respondent no. 1 herein and directed the
appellant to re-assess the writ petitioner's application for an LPG distributorship on the basis of the contents thereof and the documents appended thereto without going into the technicality of the length and breadth of the space not being indicated by the writ petitioner.
The appellant Indian Oil Corporation had invited applications for LPG distributorship. The norms prescribed and set out in the printed application form were as under:
2M.A.T. 318 of 2010 "8.BASIC FACILITIES REQUIRED FOR OPERATION OF LPG DISTRIBUTORSHIP 8.1 GODOWN FOR STORAGE OF FILLED LPG CYLINDERS.
Godown approved by Chief Controller off Explosives is required for storage of filled cylinders.
Godown/land for construction of Godown will be suitable if it is located within above 15 kms. or in the area of operation (trading area) of the advertised location freely accessible through all weather motor able approach road. The plot should be plain, in one contiguous lot, free from overhead power transmission or telephone lines. Pipelines/Canals/Drainage/Nallahs/Pu blic Roads should not pass through the plot.
Minimum Dimensions of Plot :
27m x 26.15m.
8.2 SHOWROOM Showroom as per the standard lay out can be made in a shop/land located in the area of operation (trading area) of the advertised location for LPG distributorship and should be easily accessible to general public through a suitable approach road.
Minimum dimension of the showroom 3m x 4.5m."
Paragraph 14 of the terms and conditions also laid down the norms for evaluating the candidates in the following terms:
3M.A.T. 318 of 2010 "NORMS FOR EVALUTING THE CANDIDATES The LPG distributor will be selected on the basis of evaluation of all eligible applicants on the following parameters:
a. Capability to provide infrastructure* : 35 marks b. Capability to provide finance* : 35 marks c. Educational qualifications** : 15 marks d. Age** : 4 marks e. Experience : 4 marks f. Business ability/acumen : 5 marks g. Personality** : 2 marks Total marks : 100 marks The evaluation on the parameters 'a' to 'd' above wil be done on the basis of the information given in the application. The evaluation on the parameter 'e', 'f' & 'g' will be done based on the interview"
Paragraph 14.1 gave the break up for allocation of marks on various parameters based on various documents, which allocation was to be given as per information given in the application. Parameters indicated in paragraph 14.1 indicated 25 marks for suitable land for LPG storage/godown if the land was owned by the applicant as indicated in the registered sale deed, 18 marks if the applicant had firm offer, that is to say, having agreement to purchase/lease the land/godown suitable for LPG storage and 10 marks if the land/godown could be arranged. It was specifically indicated that all this valuation will be based on the information and statement given in the application. Similarly 10, 7 and 5 marks were to be allotted on the above 4 M.A.T. 318 of 2010 parameters for land/shop suitable for showroom of LPG, depending on ownership, firm offer and possibility of arrangement respectively.
In the application there was a specific column in paragraph 13A1 and 13A2 requiring the applicant to provide various details and particularly the dimension of length and breadth in meters. The applicant mentioned "575" in column no. 13A1 wherein the applicant was to indicate the length and breadth of the godown in meters. Similarly in Column No. 13B requiring the dimension in length and breadth of showroom in meters, the applicant had mentioned ".24 dec" . The case of the appellant corporation is that in view of the absence of dimensions given by the applicant in the specific columns, the applicant was not considered to be eligible for LPG distributorship.
The petitioner challenged the said decision and the learned Single Judge upheld the challenge on the following ground:
" It may appear that certain trick questions were set by the corporation to trap ordinary applicants. The indication of "L*B" may not appear clear to the kind of people who apply for LPG distributorships. It is possible that it may be argued that certain trick questions were left for ordinary applicants to slip on and for favoured candidates to be forewarned to be careful 5 M.A.T. 318 of 2010 and fill up the column exactly as required.
It appears to a specious basis for the marks to not have been awarded to the petitioner only on the ground of the length and breadth of the storage space and shop room not being mentioned in the application. It is also a matter of significance that in the allotment of marks, there is no additional ground therein for marks to be awarded on the basis of the length or breadth or the area of the spaces".
The Indian Oil Corporation is in appeal against the above order.
The learned counsel for the appellant corporation submitted that when the criteria for selection of LPG distributorship specifically required the applicant to indicate the dimensions of the length and breadth of the land/godown, the writ petitioner could not be considered to be eligible unless and until he had mentioned in the application minimum 27 meters as length and minimum 26.15 as breadth. In order to see that the writ petitioner did not suffer on account of not filling in the particulars in the application, if he did have the land/godown with the requisite minimum dimensions by order dated 12th April, 2010 this Court gave the writ petitioner an opportunity to submit an affidavit indicating the length and breadth of the godown/show room. Pursuant to the said liberty the writ petitioner filed an affidavit dated 12th May, 2010 giving the following particulars:
6
M.A.T. 318 of 2010
Space Length(in Breadth (in Area (in
meters) meters) sq.meters)
Show room 18.29 10.45 191.13
Godown 49.77 19.52 971.51
In view of the above dimensions, the learned counsel for the appellant has submitted that the writ petitioner fails to fulfill the basic requirements of having land/godown with dimensions of 27meters in length and 26.15 meters in breadth. It is submitted that the land/godown of the writ petitioner does not have the minimum breadth of 26.15 meters. It is also submitted that the requirements of minimum dimensions for godown/show room were stipulated in the application form itself, on the basis of the guidelines laid down by the Explosive Department and that the writ petitioner had never challenged the minimum requirements stipulated in the application. It is further submitted that in any view of the matter as per the settled legal position, the authority calling for the tender is the best judge to prescribe the terms and conditions of the tender and it is not for the Courts to say whether the conditions prescribed in the tender under consideration were better than the ones prescribed in the earlier tender invitations. It is for the Court to say that the terms of the invitation to tender are not open to judicial scrutiny. The courts would interfere with the administrative policy decision only if it is arbitrary, discriminatory mala fide or actuated by bias. The Courts cannot strike down the terms of the tender 7 M.A.T. 318 of 2010 prescribed by the Government because it feels that some other terms in the tender would have been fair, wiser or logical. The Courts can interfere only if the policy decision is arbitrary, discriminatory or mala fide. For this purpose reliance is placed on the decision of the Apex Court in the case of Directorate of Education -vs- Educomp Datamatics Ltd. reported in (2004) 4 SCC 19.
On the other hand, learned counsel for the writ petitioner has supported the judgment of the learned Single Judge and particularly the reasoning in the impugned judgment which is already quoted hereinabove.
Having heard the learned counsel for the parties, we find considerable substance in the submissions made on behalf of the appellant. The application form contained the basic facilities required for operation of the LPG distributorship. The minimum dimensions of plot for godown as stipulated are 27/26.15 meters. Admittedly, the breadth of the plot held by the writ petitioner did not have the breadth of 26.15 meters, but it is only 19.52 meters.
Learned counsel for the writ petitioner has submitted that in any case the minimum area required is 702 sq. meters whereas the writ petitioner has an area admeasuring 971 sq. meters.
8M.A.T. 318 of 2010 In our view, however, when the requirements are in terms of minimum dimensions of length and breadth, the total area of the land cannot override the minimum dimensions of the plot as stipulated by the Corporation in terms of length and breadth. As per the settled legal position as enunciated by the Apex Court in Directorate of Education -vs- Educomp Datamatics Ltd. reported in (2004) 4 SCC 19, the Court cannot interfere with the terms and conditions of the tender unless the same are held to be arbitrary or mala fide. No such case of arbitrariness or mala fides is pleaded in the writ petition nor is there any material to warrant any such allegation or inference.
We, therefore, allow the appeal, set aside the judgment of the learned Single Judge and dismiss the writ petition. In the facts and circumstances of the case, however, there shall be no order as to costs.
(MOHIT S. SHAH, CHIEF JUSTICE) (T. K. GUPTA, J.) 9 M.A.T. 318 of 2010