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Sunday, February 9, 2014

Bharat Petroleum Retail Outlet - Selection - application of respondent No.7 was rejected - Appellant was selected but pending NOC due to pending of partition suit- Respondent no.7 filed writ petition - High court order to conduct fresh selections with out waiting for NOC and further held that respondent No.7 suppressed the material facts in respect of his title - Subsequent events made it clear the title of appellant and NOC was also issued - but the Division Bench failed to consider the same and directed the company to allot outlet to the respondent No.7 next in Rank - Apex court set aside the orders of High court and D.B also due to failure to considered the subsequent events = SANJAY KUMAR SHUKLA ... APPELLANT (S) VERSUS M/S BHARAT PETROLEUM ... RESPONDENT (S) CORPORATION LTD. & ORS. = 2014 (Feb. Part)judis.nic.in/supremecourt/filename=41208

   Bharat Petroleum Retail Outlet - Selection - application of respondent No.7 was rejected - Appellant was selected but pending NOC  due to pending of partition suit- Respondent no.7 filed writ petition -  High court order to conduct fresh selections with out waiting for NOC and further held that respondent No.7 suppressed the material facts in respect of his title - Subsequent events made it clear the title of appellant and NOC was also issued - but the Division Bench failed to consider the same and directed the company to allot outlet to the respondent No.7 next in Rank - Apex court set aside the orders of High court and D.B also due to failure to considered the subsequent events =
The  first  respondent  Corporation  issued  an  advertisement  dated
30.05.2010 for award of dealership of retail outlets in different  locations
including Areraj, East  Champaran  District  in  the  State  of  Bihar.  = 
Aggrieved by the selection, the  respondent  No.7  filed  a  complaint
dated 25.01.2011 before the Corporation raising a two-fold  grievance.   
The
first was with regard to award of ‘zero’ marks to the Respondent, against  a
maximum of ‘four’ awardable under the  head  “Fixed  and  Moveable  Assets”.

The second grievance raised was that the land offered by the  appellant  was
under litigation and was not immediately available for  use  of  the  retail
outlet.  
The complaint filed by the respondent No.7  was  promptly  answered
by an order of rejection dated 28.01.2011 on the ground that  the  Technical
Evaluation Committee in its  report  had  found  the  land  offered  by  the
appellant suitable for development of the retail outlet and that  the  issue
raised by the respondent in the objection/complaint would be dealt  with  in
the process of grant of No  Objection  Certificate  (NOC)  by  the  District
Magistrate to whom a reference of the matter is required to be made.  In  so
far as the claim of the respondent No.7 with regard to  award  of  marks  is
concerned, the same was rejected on the ground that the respondent  had  not
furnished any document in support of his title to the  assets  mentioned  by
him in his application.    =
 A learned Single Judge of the High Court by  order
dated 29.09.2011 took the view that in so far  as  award  of  marks  to  the
respondent No.7 is concerned no fault can be found in the  decision  of  the
Corporation inasmuch as the respondent No.7 did not produce any document  of
title in respect of assets mentioned by  him  in  his  application  for  the
dealership.   In  fact,  the  learned  Single  Judge  came  to  the  further
conclusion that such failure on the part of the respondent No.7 amounted  to
suppression/concealment of  relevant  facts.   In  so  far  as  the  present
appellant is concerned, the learned Single  Judge  came  to  the  conclusion
that the requisite NOC from the District Magistrate in respect of  the  land
offered by the appellant not having been granted, the Corporation cannot  be
expected to wait  indefinitely.   Consequently,  the  learned  Single  Judge
directed that the selection process be redone. =
      The Division Bench of the High Court  by
the impugned order dated 16.05.2012 substantially agreed with  the  findings
recorded by the learned Single Judge in so  far  as  both  the  parties  are
concerned.  However, taking note of Clause 16 of the Norms  i.e.  “Procedure
For Selection Of Petrol/Diesel Retail Outlet Dealers”, the  Bench  took  the
view that once the appellant was found to  be  disentitled,  the  dealership
should have been awarded to respondent No.7, he being,  at  serial  No.2  of
the merit list. Consequential directions were issued by the  Division  Bench
of the High Court.  Aggrieved, the present appeals have been filed. =
In the present case even before the Letter of  Intent  in  respect  of
the dealership could be issued to the appellant the proposed grant  came  to
be challenged before the High Court by the respondent No.7 who had  impugned
the decision of the Corporation dated  28.01.2011  rejecting  the  complaint
filed by him against the selection made.  
Initially, the District  Authority
had taken the stand that the NOC in respect  of  the  land  offered  by  the
appellant cannot be issued as the  same  was  found  to  be  involved  in  a
litigation i.e. Partition Suit No.7 of 2006.  
While the  writ  petition  was
pending there was a change in the stand of the  District  Authority  in  the
matter of grant of NOC.  
Yet, the same was not brought to the notice of  the
learned Single Judge.  
A vital fact, therefore,  escaped  notice.  The  fact
that the appellant was impleaded in the suit on 04.02.2011,  i.e.  nearly  5
years after the institution thereof and after the  selection  was  finalized
by the Corporation on 30.12.2010 was before the High  Court;  yet  the  same
had been overlooked  by  the  learned  Single  Judge.   
The  Division  Bench
hearing the Letters  Patent  Appeals  also  overlooked  the  fact  that  the
learned Trial Court by order dated 19.10.2011 had allowed  the  deletion  of
the land in question from the purview of  the  said  partition  suit  on  an
application filed by the plaintiff.   This  is,  notwithstanding,  the  fact
that the amendment  application  dated  17.10.2011  as  well  as  the  order
thereon dated 19.10.2011 was brought on the record  of  the  L.P.A.  by  the
appellant.  That apart, the facts brought on record of  the  present  appeal
by the parties is of considerable significance.  The  subsequent  report  of
the Sub-Divisional Officer dated 18.8.2011 recommending grant  of  NOC;  the
reminder of the Corporation dated 26.12.2011 to the District  Authority  for
grant of NOC; the institution of Title Suit No.638 of  2011  in  respect  of
the land in question and the dismissal thereof by order dated 06.01.2014  on
the ground of maintainability as well as the  dismissal  of  Partition  Suit
No.7 of 2006 on  07.01.2014  (on  withdrawal)  are  too  significant  to  be
ignored, as already held.  Relevant facts have  been  ignored  at  different
stages of consideration of the matter by the High Court and in the light  of
the totality of the facts now placed before us, we  unhesitatingly  come  to
the conclusion that in the present case there was a deliberate and not  very
bona fide attempt on the part of  the respondent No.7  to  deny  the   fruit
of  the selection
In the present case, fortunately, the litigation  has  not  been  very
time consuming.  Nothing has been suggested on  behalf  of  the  Corporation
that the  establishment  of  a  retail  outlet  at  Areraj,  East  Champaran
District in the State of Bihar  is  not  required  as  on  date.    It  can,
therefore, be safely understood that in the instant case the public  of  the
locality have been deprived of the benefit of the service  that  the  outlet
could  have  generated.   We  have  already  indicated  that   the   present
litigation initiated  by  Respondent  No.  7  does  not  constitute  a  very
bonafide exercise on  the  part  of  the  said  Respondent  and  the  entire
litigation appears to have been driven by desire to deny the fruits  of  the
selection in  which  the  appellant  was  found  to  be  the  most  eligible
candidate.   
Whether  the  outlet  is  operated  by  the  appellant  or  the
Respondent No. 7 is of no consequence to the ultimate beneficiaries  of  the
service to be offered by the said outlet.  
The above highlights the need  of
caution  that  was  imperative  on  the  part  of  the  High   Court   while
entertaining the writ petition and in passing orders therein.   

Be  that  as
it may, in the totality of the facts of the present  case,  we  are  of  the
view that it would be just and proper to direct the Corporation,  if  it  is
of the view that the operation of the retail outlet is  still  justified  by
the exigencies, to award  the  same  to  the  appellant  by  completing  the
requisite formalities in accordance with the  procedure  laid  down  by  the
Corporation itself.
16.   Consequently, these appeals are allowed and the impugned  order  dated
16.05.2012 passed by  the  Division  Bench  of  the  High  Court  in  L.P.A.
Nos.1845 and 1916 of 2011 as well as the order dated  29.09.2011  passed  by
learned Single Judge in C.W.J.C. No.6125 of 2011 are set aside.
2014 (Feb. Part)judis.nic.in/supremecourt/filename=41208
P SATHASIVAM, RANJAN GOGOI

                REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
               CIVIL APPEAL  NOs.    1871-1872        OF 2014
             Special Leave Petition (C) Nos. 17673-17674 OF 2012


SANJAY KUMAR SHUKLA                    ...    APPELLANT (S)

                                   VERSUS

M/S BHARAT PETROLEUM              ...  RESPONDENT (S)
CORPORATION LTD. & ORS.


                               J U D G M E N T


RANJAN GOGOI, J.

1.    Leave granted.

2.     These appeals are directed against  the  common  judgment  and  order
dated 16.05.2012 passed by the High Court of Judicature at Patna in  Letters
Patent Appeal Nos.1845 and 1916 of 2011.
By the aforesaid  impugned  order,
the High Court has directed that the respondent No.7 herein who  was  placed
at serial No.2 of the select list/merit panel for  award  of  dealership  of
retail outlet  under  the  respondent  No.1,  i.e.   M/s.  Bharat  Petroleum
Corporation Ltd., be  offered  the  said  dealership  after  completing  the
process  contemplated  under  the  selection  procedure  in  force  in   the
Corporation.

3.    A summary of the essential facts is delineated hereinbelow:-

       The  first  respondent  Corporation  issued  an  advertisement  dated
30.05.2010 for award of dealership of retail outlets in different  locations
including Areraj, East  Champaran  District  in  the  State  of  Bihar.
The
selection was to be made in accordance with  the  norms  laid  down  by  the
Corporation and available in a booklet published  on  15.09.2008  under  the
caption “procedure for selection of  petrol/diesel  retail  outlet  dealers”
(hereinafter referred to as the “Norms”).
On the basis of the  applications
received for grant of the dealership  in  question,  a  selection  was  held
wherein the appellant was placed at Sl.No.1 with  78.04  marks  whereas  the
respondent No.7 who had secured 77.75 marks  was  placed  at  Sl.No.2.   The
dealership was to  be  offered  to  the  most  meritorious  candidate  after
necessary field verification.  
The norms contemplated issuance of  a  Letter
of Intent (LoI) on the expiry of 30 days from the  date  of  publication  of
the select list/merit panel or till disposal of  complaints,  if  any,  with
regard to the selection made by  the  Corporation.   
A  grievance  redressal
mechanism is expressly laid down in the ‘Norms’.

4.    Aggrieved by the selection, the  respondent  No.7  filed  a  complaint
dated 25.01.2011 before the Corporation raising a two-fold  grievance.   
The
first was with regard to award of ‘zero’ marks to the Respondent, against  a
maximum of ‘four’ awardable under the  head  “Fixed  and  Moveable  Assets”.

The second grievance raised was that the land offered by the  appellant  was
under litigation and was not immediately available for  use  of  the  retail
outlet.  
The complaint filed by the respondent No.7  was  promptly  answered
by an order of rejection dated 28.01.2011 on the ground that  the  Technical
Evaluation Committee in its  report  had  found  the  land  offered  by  the
appellant suitable for development of the retail outlet and that  the  issue
raised by the respondent in the objection/complaint would be dealt  with  in
the process of grant of No  Objection  Certificate  (NOC)  by  the  District
Magistrate to whom a reference of the matter is required to be made.  In  so
far as the claim of the respondent No.7 with regard to  award  of  marks  is
concerned, the same was rejected on the ground that the respondent  had  not
furnished any document in support of his title to the  assets  mentioned  by
him in his application.

5.    Aggrieved by the rejection  of  his  complaint,  the  respondent  No.7
moved the High Court by means of a writ petition registered and numbered  as
C.W.J.C. No.6125 of 2011.  No Letter of  Intent  had  been  granted  to  the
appellant at that stage.  A learned Single Judge of the High Court by  order
dated 29.09.2011 took the view that in so far  as  award  of  marks  to  the
respondent No.7 is concerned no fault can be found in the  decision  of  the
Corporation inasmuch as the respondent No.7 did not produce any document  of
title in respect of assets mentioned by  him  in  his  application  for  the
dealership.   In  fact,  the  learned  Single  Judge  came  to  the  further
conclusion that such failure on the part of the respondent No.7 amounted  to
suppression/concealment of  relevant  facts.   In  so  far  as  the  present
appellant is concerned, the learned Single  Judge  came  to  the  conclusion
that the requisite NOC from the District Magistrate in respect of  the  land
offered by the appellant not having been granted, the Corporation cannot  be
expected to wait  indefinitely.   Consequently,  the  learned  Single  Judge
directed that the selection process be redone.

6.          Aggrieved by the order dated 29.09.2011 passed  by  the  learned
Single Judge  both  the  appellant  and  the  respondent  No.7  filed  their
respective Letters Patent Appeals.  The Division Bench of the High Court  by
the impugned order dated 16.05.2012 substantially agreed with  the  findings
recorded by the learned Single Judge in so  far  as  both  the  parties  are
concerned.  However, taking note of Clause 16 of the Norms  i.e.  “Procedure
For Selection Of Petrol/Diesel Retail Outlet Dealers”, the  Bench  took  the
view that once the appellant was found to  be  disentitled,  the  dealership
should have been awarded to respondent No.7, he being,  at  serial  No.2  of
the merit list. Consequential directions were issued by the  Division  Bench
of the High Court.  Aggrieved, the present appeals have been filed.

7.    Contending that the findings of the learned Single Judge  with  regard
to suppression/concealment had not been set aside by the Division  Bench  of
the High Court in its order dated 16.05.2012, the respondent No.7 had  moved
SLP (C) No.28324 of 2012 against the  aforesaid  part  of  the  order  dated
16.05.2012. The SLP filed by the  respondent  No.7  was  dismissed  by  this
Court by order dated 05.10.2012.

8.    An effective resolution of the contentious issues  that  have  emerged
from the arguments made  on  behalf  of  the  rival  parties  would  require
specific notice of the relevant documents brought on record by  the  parties
at different stages of the proceedings before the  High  Court  as  well  as
this  Court.  
As  none  of  the  said  documents  are  disputed   and   the
authenticity/genuineness  thereof  is  not   questioned,   considering   the
relevance of the same to the subject matter, we are of  the  view  that  the
facts unfolded by the said documents can be ignored only at the  cost  of  a
fair adjudication of the lis between the parties.   We,  therefore,  proceed
to take note of the said facts in proper sequential order.


9.     After  the  selection  for  the  dealership  was  finalized  by   the
Corporation on 30.12.2010, a reference was made to  the  District  Authority
on 24.01.2011 for grant of NOC to enable the Corporation to  apply  for  the
necessary licence under the Petroleum Rules, 2002.
By communications  dated
11.07.2011 and 16.07.2011 the District Authority  informed  the  Corporation
that NOC cannot be granted on account of the fact that the  land,  on  which
outlet was proposed, was involved in Partition Suit No.7 of 2006.
It  would
be of some significance that the appellant was  impleaded  as  defendant  in
the said suit on 04.02.2011 i.e. after 5 years of its institution  and  that
too  after  the  finalization  of  the  select  list/merit  panel   by   the
Corporation.
An order of injunction  to  restrain  the  District  Authority
from issuing NOC was sought by the plaintiff in Partition Suit No.7 of  2006
which was refused by the learned Trial Court on 19.07.2011.
 Taking note  of
the aforesaid fact i.e. refusal of injunction, the District Authority,  once
again, sought for a report from the Sub-Divisional Officer whether  NOC  can
be granted. 
This was on 04.08.2011.  The Sub-Divisional Officer  sought  the
opinion of the Government Advocate and submitted a report  dated  18.08.2011
recommending grant of NOC.  
These documents, though vital, were  not  before
the High Court but have been placed before us.   
After  the  learned  Single
Judge had decided the writ  petition  by  ordering  a  fresh  selection,  an
amendment application dated 17.10.2011 was filed in Partition Suit  No.7  of
2006 for deletion of the land offered for the dealership  from  the  purview
of the suit.  The said amendment was allowed by the learned Trial  Court  on
19.10.2011.
In the L.P.A. filed by the appellant, i.e.  L.P.A.  No.1845  of
2011 the amendment application for deletion of the land in question as  well
as the order dated 19.10.2011 of the learned Trial Court allowing  the  said
amendment application were enclosed.  
The High  Court  overlooked  the  same
and did not consider the effect thereof on the rights  and  entitlements  of
the respective parties.  It also appears that on 26.12.2011,  on  behalf  of
the Corporation, a reminder was issued to the District Authority  for  grant
of the NOC applied for by the Corporation on 24.01.2011.  There  is  another
letter on record dated  30.12.2011  from  the  District  Magistrate  to  the
Territory Manager (Retail)  Bharat  Petroleum  Corporation  Limited  in  the
matter of grant of NOC.  In the said letter reference has been made  to  the
order of the learned Single Judge in the  C.W.J.C.  No.6125  of  2011  dated
29.09.2011.  In the ultimate paragraph of  the  said  letter  it  is  stated
that:-

      “Thus, in view of the present context, kindly inform about your final
      decision regarding issuance of NOC whether  issuance  of  NOC  can  be
      considered or not.”


The aforesaid letter dated 30.12.2011  is  an  English  translation  of  the
original.  The contents of the last paragraph quoted  hereinabove  has  left
the true meaning thereof clouded though  the  appellant  contends  that  the
said paragraph should be read as containing a query from the Corporation  as
to whether in view of the learned Single Judge’s order passed  in  the  writ
petition, NOC can be issued or not.  Be that as it may,  another  suit  i.e.
T.S.No.638 of 2011 involving land in question  had  been  instituted  though
the same has been dismissed on 6.1.2014 as  not  maintainable.   Above  all,
Partition Suit No.7 of 2006 has been dismissed as withdrawn on  7.1.2014  on
an  application  filed  by  the  plaintiff.   No  other  pending  litigation
involving the land has been brought to the notice of the Court.


10.   In the present case even before the Letter of  Intent  in  respect  of
the dealership could be issued to the appellant the proposed grant  came  to
be challenged before the High Court by the respondent No.7 who had  impugned
the decision of the Corporation dated  28.01.2011  rejecting  the  complaint
filed by him against the selection made.  
Initially, the District  Authority
had taken the stand that the NOC in respect  of  the  land  offered  by  the
appellant cannot be issued as the  same  was  found  to  be  involved  in  a
litigation i.e. Partition Suit No.7 of 2006.  
While the  writ  petition  was
pending there was a change in the stand of the  District  Authority  in  the
matter of grant of NOC.  
Yet, the same was not brought to the notice of  the
learned Single Judge.  
A vital fact, therefore,  escaped  notice.  The  fact
that the appellant was impleaded in the suit on 04.02.2011,  i.e.  nearly  5
years after the institution thereof and after the  selection  was  finalized
by the Corporation on 30.12.2010 was before the High  Court;  yet  the  same
had been overlooked  by  the  learned  Single  Judge.   
The  Division  Bench
hearing the Letters  Patent  Appeals  also  overlooked  the  fact  that  the
learned Trial Court by order dated 19.10.2011 had allowed  the  deletion  of
the land in question from the purview of  the  said  partition  suit  on  an
application filed by the plaintiff.   This  is,  notwithstanding,  the  fact
that the amendment  application  dated  17.10.2011  as  well  as  the  order
thereon dated 19.10.2011 was brought on the record  of  the  L.P.A.  by  the
appellant.  That apart, the facts brought on record of  the  present  appeal
by the parties is of considerable significance.  The  subsequent  report  of
the Sub-Divisional Officer dated 18.8.2011 recommending grant  of  NOC;  the
reminder of the Corporation dated 26.12.2011 to the District  Authority  for
grant of NOC; the institution of Title Suit No.638 of  2011  in  respect  of
the land in question and the dismissal thereof by order dated 06.01.2014  on
the ground of maintainability as well as the  dismissal  of  Partition  Suit
No.7 of 2006 on  07.01.2014  (on  withdrawal)  are  too  significant  to  be
ignored, as already held.  Relevant facts have  been  ignored  at  different
stages of consideration of the matter by the High Court and in the light  of
the totality of the facts now placed before us, we  unhesitatingly  come  to
the conclusion that in the present case there was a deliberate and not  very
bona fide attempt on the part of  the respondent No.7  to  deny  the   fruit
of  the selection

made in favour of the appellant  by  the  Corporation  as  far  back  as  on
30.12.2010.  The situation, therefore, has to be  remedied  and  it  is  the
precise manner thereof which must now engage the attention of the Court.

11.   We cannot help observing that in the  present  case  exercise  of  the
extraordinary jurisdiction vested in the High Court by Article  226  of  the
Constitution has been with a somewhat free hand oblivious  of  the  note  of
caution struck by this Court with regard to such exercise, particularly,  in
contractual  matters.   The  present,  therefore,  may  be  an   appropriate
occasion to recall some of the observations  of  this  Court  in  the  above
context.  In Raunaq  International  Ltd.  Vs.  I.V.R.  Construction  Ltd.  &
Ors.[1], (paragraphs 9, 10 and 11) this Court had held as follows :-

      “9.   The award of a contract, whether it is by a private party or  by
      a public body or the State, is essentially a  commercial  transaction.
      In arriving at a commercial  decision,  considerations  which  are  of
      paramount importance are commercial considerations. These would be:

           (1) the price at which the other side is willing to do the work;

           (2) whether the goods or services offered are of the requisite
           specifications;

           (3) whether the person tendering has the ability to deliver  the
           goods or  services  as  per  specifications.  When  large  works
           contracts  involving  engagement  of  substantial  manpower   or
           requiring specific skills  are  to  be  offered,  the  financial
           ability of the tenderer to fulfil the requirements of the job is
           also important;

           (4) the ability of the tenderer to deliver goods or services  or
           to do the work of the requisite standard and quality;

           (5)  past  experience  of  the  tenderer  and  whether  he   has
           successfully completed similar work earlier;

           (6) time which will be taken to deliver the goods  or  services;
           and often

           (7) the ability  of  the  tenderer  to  take  follow-up  action,
           rectify defects or to give post-contract services.

      Even when the  State  or  a  public  body  enters  into  a  commercial
      transaction, considerations which would prevail  in  its  decision  to
      award the contract to a  given  party  would  be  the  same.  However,
      because the State or a public body or an agency of  the  State  enters
      into such a contract, there could be, in a given case, an  element  of
      public law or public interest  involved  even  in  such  a  commercial
      transaction.

      10. What are these elements of public interest? (1) Public money would
      be expended for the  purposes  of  the  contract.  (2)  The  goods  or
      services which are being commissioned could be for a  public  purpose,
      such as, construction of roads,  public  buildings,  power  plants  or
      other public utilities. (3) The public would be directly interested in
      the timely fulfilment of the contract  so  that  the  services  become
      available to the public expeditiously. (4) The public  would  also  be
      interested in the quality of the work undertaken or goods supplied  by
      the tenderer. Poor quality of work or goods  can  lead  to  tremendous
      public hardship and substantial financial outlay either in  correcting
      mistakes or in rectifying defects or even  at  times  in  redoing  the
      entire work — thus  involving  larger  outlays  of  public  money  and
      delaying the availability of services, facilities or  goods,  e.g.,  a
      delay in [pic]commissioning a power project, as in the  present  case,
      could lead to power shortages, retardation of industrial  development,
      hardship to the general public and substantial cost escalation.


      11. When a writ petition is filed in the High  Court  challenging  the
      award of a contract by a public authority or the State, the court must
      be satisfied that there is some element of public interest involved in
      entertaining such a petition. If, for example, the dispute  is  purely
      between two tenderers, the court must be very careful to see if  there
      is any element of public interest involved in the litigation.  A  mere
      difference in the prices offered by the two tenderers may or  may  not
      be decisive in deciding whether any public  interest  is  involved  in
      intervening in such a commercial transaction. It is important to  bear
      in mind that by  court  intervention,  the  proposed  project  may  be
      considerably delayed thus escalating the cost far more than any saving
      which the court would ultimately effect in public  money  by  deciding
      the  dispute  in  favour  of  one  tenderer  or  the  other  tenderer.
      Therefore, unless the court is satisfied that there is  a  substantial
      amount of public interest, or the transaction  is  entered  into  mala
      fide, the court should not intervene under  Article  226  in  disputes
      between two rival tenderers.”



12.   In Air India Ltd. Vs. Cochin International  Airport  Ltd.  &  Ors.[2],
there was a further reiteration of  the  said  principle  in  the  following
terms:-

      “7. The law relating  to  award  of  a  contract  by  the  State,  its
      corporations and bodies acting as instrumentalities  and  agencies  of
      the Government has been settled by  the  decision  of  this  Court  in
      Ramana Dayaram Shetty v. International Airport Authority of  India[3],
      Fertilizer Corpn. Kamgar Union (Regd.) v. Union of  India[4],  CCE  v.
      Dunlop India Ltd.[5], Tata Cellular v. Union of India[6], Ramniklal N.
      Bhutta v. State of Maharashtra[7] and  Raunaq  International  Ltd.  v.
      I.V.R. Construction Ltd.[8] The award of a contract, whether it is  by
      a private party or by a public body or the  State,  is  essentially  a
      commercial  transaction.  In  arriving  at   a   commercial   decision
      considerations which are paramount are commercial considerations.  The
      State can choose its own method to arrive at a decision.  It  can  fix
      its own terms of invitation to tender and that is not open to judicial
      scrutiny. It can enter into negotiations before  finally  deciding  to
      accept one of the offers made to it. Price need not always be the sole
      criterion for awarding a contract. It is free to grant any relaxation,
      for bona  fide  reasons,  if  the  tender  conditions  permit  such  a
      relaxation. It may not accept the offer even though it happens  to  be
      the  highest  or  the  lowest.  But  the  State,   its   corporations,
      instrumentalities and agencies are  bound  to  adhere  to  the  norms,
      standards and procedures laid down by them and cannot depart from them
      arbitrarily. Though that decision is not amenable to judicial  review,
      the court can examine the decision-making process and interfere if  it
      is found vitiated by mala fides, unreasonableness  and  arbitrariness.
      The State, its corporations, instrumentalities and agencies  have  the
      public duty to be fair to all concerned.  Even  when  some  defect  is
      found in the decision-making  process  the  court  must  exercise  its
      discretionary power under Article 226 with great  caution  and  should
      exercise it only in furtherance of public interest and not  merely  on
      the making out of a legal point. The  court  should  always  keep  the
      larger public  interest  in  mind  in  order  to  decide  whether  its
      intervention is called for or not. Only when it comes to a  conclusion
      that overwhelming public interest  requires  interference,  the  court
      should intervene.”
                                                          (Emphasis is ours)



13.   Similar reiteration is to be found in Master Marine Services (P)  Ltd.
Vs. Metcalfe & Hodgkinson (P)  Ltd.  &  Anr.[9];   Tejas  Constructions  and
Infrastructure  Private  Limited  Vs.   Municipal   Council,   Sendhwa   and
Another[10] and several other pronouncements reference to which  would  only
be repetitive and, therefore, is best avoided.
14.   We have felt it necessary to reiterate the need of caution sounded  by
this Court in the decisions referred to hereinabove in view of  the  serious
consequences that the  entertainment  of  a  writ  petition  in  contractual
matters, unless justified by public interest,  can  entail.   Delay  in  the
judicial process  that  seems  to  have  become  inevitable  could  work  in
different ways.  Deprivation of the benefit of a service or facility to  the
public; escalating costs burdening the public exchequer and  abandonment  of
half completed works and projects due to the  ground  realities  in  a  fast
changing economic/market scenario are some of the pitfalls that  may  occur.

15.   In the present case, fortunately, the litigation  has  not  been  very
time consuming.  Nothing has been suggested on  behalf  of  the  Corporation
that the  establishment  of  a  retail  outlet  at  Areraj,  East  Champaran
District in the State of Bihar  is  not  required  as  on  date.    It  can,
therefore, be safely understood that in the instant case the public  of  the
locality have been deprived of the benefit of the service  that  the  outlet
could  have  generated.   We  have  already  indicated  that   the   present
litigation initiated  by  Respondent  No.  7  does  not  constitute  a  very
bonafide exercise on  the  part  of  the  said  Respondent  and  the  entire
litigation appears to have been driven by desire to deny the fruits  of  the
selection in  which  the  appellant  was  found  to  be  the  most  eligible
candidate.   
Whether  the  outlet  is  operated  by  the  appellant  or  the
Respondent No. 7 is of no consequence to the ultimate beneficiaries  of  the
service to be offered by the said outlet.  
The above highlights the need  of
caution  that  was  imperative  on  the  part  of  the  High   Court   while
entertaining the writ petition and in passing orders therein.   
Be  that  as
it may, in the totality of the facts of the present  case,  we  are  of  the
view that it would be just and proper to direct the Corporation,  if  it  is
of the view that the operation of the retail outlet is  still  justified  by
the exigencies, to award  the  same  to  the  appellant  by  completing  the
requisite formalities in accordance with the  procedure  laid  down  by  the
Corporation itself.
16.   Consequently, these appeals are allowed and the impugned  order  dated
16.05.2012 passed by  the  Division  Bench  of  the  High  Court  in  L.P.A.
Nos.1845 and 1916 of 2011 as well as the order dated  29.09.2011  passed  by
learned Single Judge in C.W.J.C. No.6125 of 2011 are set aside.


                                                           ...…………………………CJI.
                                        [P. SATHASIVAM]

                                                        .........………………………J.
NEW DELHI,                        [RANJAN GOGOI]
FEBRUARY  07, 2014.
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[1]    (1999) 1 SCC 492
[2]    (2000) 2 SCC 617
[3]    (1979) 3 SCC 489
[4]    (1981) 1 SCC 568
[5]    (1985) 1 SCC 260
[6]    (1994) 6 SCC 651
[7]    (1997) 1 SCC 134
[8]    (1999) 1 SCC 492
[9]    (2005) 6 SCC 138
[10]   (2012) 6 SCC 464

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