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. =
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.
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.
-----------------------
[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
-----------------------
9
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.
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.
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 GOGOIREPORTABLE
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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