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Farhana Yesmin, Assam v/s Hindustan Petroleum Corporation Ltd & Others

    Case No. WP(C) 4655 of 2019

    Decided On, 18 June 2020

    At, High Court of Gauhati


    For the Petitioner: B.K. Das, Advocate. For the Respondent: J. Islam, Advocate.

Judgment Text

1. A short point is involved in this writ petition in which, an application for vacating the interim order dated 03.07.2019 being IA(C) No.3399/2019 has also been filed by the respondent No.3. Since a decision in the IA would have a major bearing with the writ petition, as agreed to by the parties, the writ petition itself is taken up for disposal at the admission stage. This Court has also noted that necessary pleadings have already been exchanged and all the parties are represented.

2. A brief narration of the facts would be necessary. The respondent No.1- Hindustan Petroleum Corporation Ltd. (hereinafterHPCL) had initiated a process for allotment of a retail outlet dealership vide an advertisement dated 24.09.2018 for various location including the location at serial no.127 which reads as follows:

“127. Towards Dimo Mile Stone No.15 to Mile Stone No. 16 on RHS on Dimo-Rangia Road.”

3. It is the case of the petitioner that both the petitioner and the respondent no. 3 had participated in the said process by submitting all requisite information and testimonials. While the land offered by the petitioner was under Group- 2, the land offered by the respondent no. 3 was under Group-1. The draw of lots was held on 04.02.2019, when the offer of the respondent no. 3 came to be selected. The petitioner contends that though the land offered by the respondent no. 3 is under the Group-1 category, the location is not as per the advertisement and rather the location is on the other side of the road. Therefore, the bid offered by the said respondent no. 3 was not even an eligible bid which had qualified for the draw of lots. The petitioner accordingly prays for setting aside the selection of the respondent no. 3 and to consider his bid.

4. This Court vide order dated 03.07.2019, while issuing notice had observed that though the respondent authorities of the HPCL could go ahead with process, no LOI should be issued in respect of the present location no. 127. The IA(C)3399/2019 has been filed for modification / vacation of the aforesaid order dated 03.07.2019 by the respondent no. 3 who is the successful bidder.

5. In the writ petition, the respondent nos. 1 & 2 HPCL has filed its counter affidavit on 04.02.2020. The respondent no. 3 has also filed a counter affidavit on 11.02.2020. So far as the IA is concerned, the petitioner (opposite party) has filed her affidavit in opposition.

6. I have heard Shri BK Das, learned counsel for the petitioner. I have also heard Shri MR Islam, learned counsel for the HPCL as well as Shri I Ahmed, learned counsel for the respondent no. 3. The materials placed before this Court have also been carefully perused.

7. Shri BK Das, learned counsel for the petitioner submits that the procedure prescribed for selection of a candidate does not make any differentiation between land which is categorized as Group-1 or Group-2 and therefore, there should not be any manner of dispute that respective plots of land offered by the petitioner and the respondent no. 3 were at par. In this connection, attention of this Court has been drawn to serial no. 4 of the Brochure regarding eligibility criteria. Clause 4(V) lays down the 3(three) groups and the sentence that Group-3 would be processed only when no applicant under Group-1 & 2 gets selected makes it clear that there is no difference between the land under Group-1 & 2. With the aforesaid foundation that both the plots of land are at par, the second argument is with regard to the location offered by the respondent no. 3 which according to the learned counsel does not meet the criteria laid down in the advertisement. It is submitted that the land required as per the advertisement should have been on the RHS (Right Hand Side) of the road whereas the land offered by the respondent no. 3 is on the left hand side. In view of such variation in the location, the bid of the respondent no. 3 could not have been to be a valid bid at all. It is the contention of the petitioner that RHS has to be construed from the direction while coming from the Head Office of the respondent authority in which case, the land offered by the respondent no. 3 becomes non-eligible.

8. Per contra, Shri Islam, learned counsel for the respondent nos. 1 & 2 –HPCL submits that the entire foundation of the case of the petitioner is a misconceived one. He submits that the initial presumption of the petitioner regarding parity of land of Group-1 and Group-2 is factually incorrect. The Brochure in question clearly lays down that priority would be given to bidders under Group-1, then Group-2 and in absence of any such bidders, Group3 bidders would be considered. He contends that the petitioner not being a Group-1 bidder in terms of the land does not even have the locus to make any challenge to a decision to allot the leadership to the respondent no. 3 whose land is under Group-1. It is submitted that there were three candidates having land under Group-1 category and another three candidates in Group-2 category. He submits that in the draw of lots which was confined to the three candidates whose land was under Group-1 category, the respondent no. 3 came out successful which was followed by a detail verification process by a Land Evaluation Committee and only after such verification, the decision was taken to allot the dealership. It is therefore submitted that even if the bid of the respondent no. 3 was disqualified for any reason, there were two more candidates in Group-1 and therefore, the question of any prejudice to be suffered by the petitioner did not arise.

9. As regards the location, the contention of the petitioner is not only incorrect but also defies logic. The key words in the location is “Milestone No. 15 to Milestone No. 16”. The same makes it clear that while moving from Milestone No. 15 to Milestone No. 16, the land should be on the RHS. The interpretation given by the petitioner is not at all correct and is an after-thought only to make out a challenge to file this present case. In any case, it is submitted that the HPCL being the owner, the interpretation of the HPCL is the correct interpretation so far as location is concerned as it is the HPCL whose requirement is to be fulfilled for setting up the retail outlet in accordance with law.

10. Shri I Ahmed, learned counsel for the respondent no. 3 has adopted the arguments of the learned counsel for the HPCL. Additionally, he has questioned the locus of the petitioner in maintaining the present challenge. He contends that the petitioner’s bid qua the land offered in question is not at par with the land offered by the respondent no. 3 and therefore, he is debarred from making any challenge to the offer made to the respondent no. 3. Even on merits regarding the location, it is submitted that the petitioner has invented a ground of directions only to suit him in filing the present case. By drawing the attention of this Court to the sketch map which has been annexed to the affidavit in opposition, it is submitted that on the north, there is Rangia and the direction has to be construed while coming from Milestone No. 15 to Milestone No. 16. In other words, the plot of land has to be at the Right Hand Side while coming in the said direction. It is further submitted that the Brochure contends a Grievance Redressal System at serial no. 18 which require any complaint to be lodged within 30(thirty) days with a prescribed fee and the said procedure having bypassed, the petitioner could not have filed the present petition.In this case, the draw of lots was on 04.02.2019, whereas the complaint was lodged on 27.03.2019 i.e beyond the prescribed period of limitation. He finally submits that the interim order dated 03.07.2019, has been causing grave prejudice to him and the public interest is also suffering and therefore, the same needs to be vacated.

11. Shri Das, learned counsel for the petitioner in his rejoinder has submitted that the location indicates “towards Dimu” which means that while travelling from the Office of HPCL at Guwahati to Dimu in which case, the land of respondent no. 3 is not located as per prescription.

12. Let us first deal with the objection questioning the locus of the petitioner to maintain the present challenge. While the petitioner has contended that she is at par with the respondent no. 3 qua the land offered, the respondents have contended that while the land of the respondent no. 3 is Group-1 land, that of the petitioner is Group-2 land. An objection regarding availability of alternative remedy prescribed in the Brochure itself in serial no. 18 of Grievance Redressal System has been raised.

13. The objection regarding existence of alternative remedy though would be a valid objection, in view of the fact that a decision making process by the HPCL which is an instrumentality of the State has been questioned, this Court will not non-suit the petitioner on this grounds. In this case, one may gainfully refer to the case of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Ors. of the Hon’ble Supreme Court reported in (1998) 8 SCC 1. The relevant paragraph is quoted herein below:

“The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. The High Court, having regard to the facts and circumstances of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions, one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by the Hon'ble Supreme Court not to operate as a bar in atleast three contingencies viz., where the writ petition has been filed for the enforcement of the any of the fundamental rights or where there has been a violation of the principles of natural justice or where the order or proceedings are wholly without jurisdiction or the virus of an Act is challenged."

14. However, the other preliminary objection regarding locus, it appears that there is substance in the said objection. The contention of the petitioner that the land under Group-1 and Group-2 are at par is based on a sentence appearing in clause 4(v) pertaining to land namely,

“Applications under Group-3 would be processed/advised to offer land only in case no eligible applicant is found or no applicant get selected under Group-1 & 2”.

However, a closer look at the Brochure, more particularly the guidelines relating to selection through draw of lots makes it clear that list of applicants (Group-1, Group-2 and Group-3) would be prepared on the basis of land offered or land not offered in the application by the applicant. It is further provided that the draw of lots/bid opening will be held first for eligible applicants in Group-1. Draw of lots/bid opening for the eligible applicants of Group-2 will be held only if there is no applicant in Group-1.

15. The facts revealed that admittedly the land offered by the petitioner falls under Group-2 which is stated in its online application itself at page 64 of the writ petition against serial no. 9 whereas the land of the respondent no. 3 falls under Group-1 which is stated in his online application found at page 10 of the affidavit in opposition of the respondent. The further fact is that under Group-1 itself, there were two more candidates. Therefore, even for argument’s sake, it is assumed that the bid of the respondent no. 3 was not eligible, there were two other bidders in the Group-1 category whose cases would have been considered then and not of the petitioner who is in Group-2. In that view of the matter there is substance in the argument about lack of locus of the petitioner to maintain the present challenge.

16. While holding that the petitioner lacks locus to maintain the present challenge, since another point has been raised questioning the eligibility of the respondent no. 3 qua his land pertaining to location, let us examine that aspect of the matter.

17. RHS according to the petitioner should be construed to be on the RHS while going from the Head Office of the respondent corporation at Guwahati to the site. On the other hand, the respondents contend that the location given against serial no. 127 makes it amply clear that it should be on the RHS from Milestone 15 to Milestone 16 on the DimoRangia Road. Since the direction may not be clearly discernible from the name of the road with its starting point and destination not clarified, what is to be taken into account is the chronological order of the Milestone. In the instant case, the land has to be on the right hand side while moving from Milestone No. 15 to Milestone No. 16 and the said requirement is duly fulfilled by the land of the respondent no. 3.

18. In matters of interpretation of any clause in a contract, it is the interpretation given by the owner which should be given credence. It is a settled law that the requirement is of the owner which would be the best judge to give the correct interpretation.

19. The Hon’ble Supreme Court in a recent judgment dated 09.04.2019, in Civil Appeal No. 3588 of 2019 passed in the case of Caretel Infotech Ltd. vs Hindustan Petroleum Corporation, reported in (2019) 14 SCC 81, 2019 has laid down as follows:

“32. We may notice another important aspect also, i.e., reluctance of respondent No.1 to accept the allegations of respondent No.3. If respondent No.1 itself had doubts on the certificate, that would have been another matter. This is not so as is apparent from the affidavit filed by 2 (2019) 2 SCC 329respondent No.1. In any case, at best, this aspect ought to have been left to the wisdom of respondent No.1, rather than the Court embarking on the course of action it followed, as if it was sitting in appeal over a decision of respondent No.1. We may add that if respondent No.1 itself has any doubts on these certificates, nothing prevented, nor still prevents respondent No.1 from looking into this aspect.

37. In Afcons Infrastructure Limited v. Nagpur Metro Rail Corporation Limited &Anr.3, this Court has expounded further on this aspect, while observing that the decision making process in accepting or rejecting the bid should not be interfered with. Interference is permissible only if the decision making process is arbitrary or irrational to an extent that no responsible authority, acting reasonably and in accordance with law, could have

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reached such a decision. It has been cautioned that Constitutional Courts are expected to exercise restraint in interfering with the administrative decision and ought not to substitute 3 (2016) 16 SCC 818their view for that of the administrative authority. Mere disagreement with the decision making process would not suffice. 38. Another aspect emphasised is that the author of the document is the best person to understand and appreciate its requirements. In the facts of the present case, the view, on interpreting the tender documents, of respondent No.1 must prevail. Respondent No.1 itself, appreciative of the wording of clause 20 and the format, has taken a considered view. Respondent No.3 cannot compel its own interpretation of the contract to be thrust on respondent No.1, or ask the Court to compel respondent No.1 to accept that interpretation. In fact, the Court went on to observe in the aforesaid judgment that it is possible that the author of the tender may give an interpretation that is not acceptable to the Constitutional Court, but that itself would not be a reason for interfering with the interpretation given…………………………………………………………………..” 20. Under the aforesaid facts and circumstances and by taking into account the law laid down by the Hon’ble Supreme Court, this Court is of the view that no enforceable right of the petitioner has been violated. Accordingly, it is held that the present petition under Article 226 of the Constitution of India is devoid of merits and the same is dismissed. The interim order of restrained dated 03.07.2019 is hereby vacated. 21. No order as to cost.