RAVINDRA v. GHUGE ANDY. G. KHOBRAGADE, JJ.RESERVED ON PRONOUNCED ON
Legal Reasoning
WP-8708-2024-Judgment.odtIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 8708 OF 2024Vasant S/o Sitaram ChaudhariAge: 54 years, Occu. Agri.,R/o. C/o Ramesh Bajirao Kangune,Shimpi Galli, Shrigonda,District Ahmednagar … PETITIONER VERSUS1.Indian Oil Corporation Ltd.,Indian Oil Bhavan, G-9,Ali Yavar Jung Marg,Bandra East, Mumbai – 400 0512.Indian Oil Corporation Ltd.,Aurangabad Divisional Office,“Indian Oil Bhavan”,Plot No.99, Jyoti Nagar,Aurangabad 431 005 … RESPONDENTS .…Mr. S. B. Solanke, Advocate for the Petitioner Mr. A. P. Bhandari, Advocate for the Respondents.…CORAM: RAVINDRA V. GHUGE ANDY. G. KHOBRAGADE, JJ.RESERVED ON PRONOUNCED ON :: 19.09.2024 30.09.2024JUDGMENT (PER – Y. G. KHOBRAGADE, J.) :- 1 of 12 (( 2 ))WP-8708-2024-Judgment1.Rule. Rule made returnable forthwith and heard finallyby the consent of the parties. 2.By the present Writ Petition under Article 226 of theConstitution of India, the Petitioner prays for issuance of writ ofcertiorari or any other Writ for quashment of orders dated 06.05.2024as well as the order dated 01.07.2024, thereby the Petitioner declaredineligible for allotment of Retail Outlet Dealership (in short ROD) onthe ground that, the petitioner has not purchased stamp paper in thename of deponent, though he was directed to rectify deficiency asper Clause “v” of the general conditions of advertisement. 3.In short it is the case of the Petitioner that, on 28-06-2023, the Respondents Indian Oil Corporation Limited (IOC)published the advertisement and invited applications for retail outletat various places in the State of Maharashtra, including the locationwithin three kms from intersection of NH 35 and Dahivel SamodeRoad towards Navapur on Right Hand side of NH 53 while movingfrom Dhule to Navapur under the Scheduled Tribe (S.T.) category.The Respondents published a brochure in respect of process for 2 of 12 (( 3 ))WP-8708-2024-Judgmentselection of dealers for regular and rural retail outlet on 10.06.2023.In response to advertisement, on 17.10.2023, the Petitioner submittedthe application for allotment of Retail Outlet dealership from S.T.category in Group-2 as he belongs to “Kokni”, which is recognised asScheduled Tribe, along with caste validity certificate. On 22.02.2024,the Respondent No.2 issued a communication and informed thePetitioner about his provisional selection to award retail outletdealership at the above location and directed the Petitioner to submitrelevant documents before 03.03.2024. In pursuant to saidcommunication, the Petitioner submitted all the relevant documents,however, vide communication dated 12.04.2024, the RespondentNo.2 informed the Petitioner that the documents in respect of landownership/lease right, are defective, therefore, he was directed torectify the said deficiencies on or before 03.05.2024. 4.Accordingly, the Petitioner submitted the Notarizedaffidavit Appendix III-A of Shri Kanhaiyalal Shravan Mali and ShriRamesh Sakharam Mali on the Non Judicial stamp of Rs.100/-,however, the Petitioner failed to submit required documents prior tocut-off date i.e. 03.05.2024. Therefore, on 06.05.2024, RespondentNo.2 issued a communication (Exh."E"), stating that the Petitioner 3 of 12 (( 4 ))WP-8708-2024-Judgmentfailed to produce required documents within specified time.Therefore, his candidature stands cancelled with understanding that,if the Petitioner is having any grievance, in that event, he may submithis grievance by representation to the authorities by 16.05.2024. 5.The learned Counsel appearing for the Petitioner submitsthat, on 08.05.2024, the Petitioner immediately submitted hisgrievance with the Respondents, stating that though in draw held on21.02.2024, he was selected and after receipt of e-mail, he compliedwith all documents, but he could not understood the meaning ofdeponent. Therefore, due to over-sight, he committed mistake whilewriting the name in Appendix III-A Affidavit and prayed for allotmentof dealership. However, on 01.07.2024, the Respondents passed theimpugned order and rejected his candidature on the ground that thePetitioner has not purchased stamp paper (affidavit) in the name ofthe deponent i.e. petitioner though he was called upon to to rectifydeficiencies. 6. The learned Counsel appearing for the Petitioner furthercanvassed that the Format Appendix-III affidavits are in the name ofShri Kanhaiyalal Shravan Mali, Shri Ramesh Sakharam Mali and both 4 of 12 (( 5 ))WP-8708-2024-Judgmentthe stamp papers are purchased in the name executant of theaffidavit. Therefore, it is bonafide mistake, occurred due tomisunderstanding of the Petitioner, which is curable and it cannotresult in the cancellation of allotment of retail outlet dealership. 7.Per contra, Adv. Bhandari, the learned counsel for theRespondents canvass that, the Petitioner submitted an application forretail outlet dealership under the S.T. category from Group No.1. On22.02.2024, the Respondent issued a communication informing aboutprovisional selection of the petitioner, however, on scrutiny, certaindeficiencies were noticed, therefore, vide communication dated22.02.2024, the Petitioner was called upon to remove deficienciesincluding affidavit Appendix-III. Therefore, it was expected from thePetitioner to produce all original documents/affidavits, which couldhave been uploaded on portal, however, the Petitioner did not removedeficiencies and no documents produced/uploaded on web site till03.03.2024 in-spite intimation was given about cancellation of hiscandidature on failure to remove the deficiencies. Thereafter, againon 12-04-2024, the Respondents issued letter intimating that thestamp papers for the affidavits required to be purchased and signedby the deponent itself, and if, there are more than one land owners, in 5 of 12 (( 6 ))WP-8708-2024-Judgmentthat event, the Appendix-III Form should be of all the co-owners ofthe land. The communication dated 12.04.2024 further specified thatthe candidature of the Petitioner would be rejected without anyfurther notice, in case he fails to upload the above corrected/rectifieddocuments within stipulated period. However, the Petitioner failed tosubmit the required documents prior to cut off date. Therefore, underthe impugned order dated 06.05.2024, the Petitioner was informedabout rejection of his candidature. 8.The learned Advocate appearing for the Respondentsfurther canvassed that as per clause “v” of the general conditions ofbrochure, all affidavits required to be submitted in original andshould be of a date after the date of advertisement, stamp papershould be of appropriate value as applicable and it should bepurchased in the name of the deponent only. But the Petitioner failedto submit the required original documents, which resultedcancellation of the selection. Therefore, the impugned order does notsuffer any infirmity and prayed for dismissal of the Petition.9.It is an admitted fact that Respondent No.1 published theadvertisement on 28.06.2023 including location Nos. 2 to 9 within 3 6 of 12 (( 7 ))WP-8708-2024-Judgmentkms from intersection of NH 53 and Dahivel Samode road towardsNavapur on right hand side on NH 53 while moving from Dhule toNavapur. It is also an admitted fact that the said location is reservedfor the candidates belonging to the S.T. category.10.It is also an admitted fact that, on 17.10.2023, thePetitioner submitted his candidature from Group - I. He was initiallyinformed vide communication dated 22.02.2024 about his provisionalselection and the Petitioner was called upon to submit variousdocuments including affidavit in Appendix - III, which were to beuploaded on portal by 03.03.2024. However, the Petitioner failed tosubmit the required documents on or before the prescribed date.Therefore, again vide communication dated 12.04.2024, thePetitioner was called upon to submit the said affidavit Appendix - IIIand the stamp papers were to be purchased by the deponent andsigned by the deponent only. 11.It was further directed the Petitioner that if there aremore than one land owner, in that case, Appendix - III required to besubmitted by all all co-owners of the land. However, the Petitionerfailed to submit the required documents prior to cut off date. 7 of 12 (( 8 ))WP-8708-2024-JudgmentTherefore, the Petitioner was informed vide impugned order dated06.05.2024 about rejection of his candidature, because of thePetitioner has not purchased the stamp papers (affidavit) in the nameof the deponent. Therefore, the Petitioner submitted hisrepresentation on 08.05.2024. Since the Petitioner failed to submitthe desired documents within the stipulated period, therefore, as perClause - “v” of the general conditions of the brochure, the candidatureof the Petitioner is rejected under the impugned order. Clause (v)provides that, all affidavits should be submitted in originals andshould be a date after the date of advertisement, stamp paper shouldbe of appropriate value as applicable in the concerned stated andshould be purchased in the name of deponent and failure to submitthe same can result in cancellation of selection. Clause 23 of thebrochure provides that, the deficiencies in the application form of theretail outlet dealership, not rectifiable ans as per clause (k), thePetitioner failed to rectify deficiencies within the stipulated period. 12.Needless to say that when the terms of a tender/advertisement are so specific as have been described above, there isno room for giving a go by to the same especially in matters of publictenders as this one. The words used in the advertisement or the 8 of 12 (( 9 ))WP-8708-2024-Judgmentbrochure could not be ignored and they must be given meaning andtheir necessary significance.13.In this context paragraphs 15 and 16 of a recent decisionof the Supreme Court in the case of Vidarbha Irrigation DevelopmentCorporation Vs. Anoj Kumar Agarwal, 2019(2)SCALE134 are apt andcan be quoted as under : “15. It is clear even on a reading of this judgment that thewords used in the tender document cannot be ignored ortreated as redundant or superfluous- they must be givenmeaning and their necessary significance. Given the fact that inthe present case, as essential tender condition which had to bestrictly complied with was not so complied with, the Appellantwould have no power to condone lack of such strictcompliance. Any such condonation, as has been done in thepresent case, would amount to perversity in the understandingor appreciation of the terms of the tender conditions, whichmust be interfered with by a constitutional court. 16. A subsidiary contention has been raised that even thebank guarantee subsequently furnished was for a period of 39months and not for 40 months. This need not be gone into inview of our finding on the first point”. 14.It may not be out of place to mention here that theadvertisement by the public corporation is for award of dealership ofa petrol pump and as such is a contractual matter. We are therefore,reminded of the principles laid down by the Supreme Court to the 9 of 12 (( 10 ))WP-8708-2024-Judgmentextent judicial review can be invoked in such matters. Paragraph 19of the decision of the Supreme Court in the case of Bakshi Securityand Personnel Services Private Limited Vs. Devkishan ComputedPrivate Limited and others, (2016) 8 SCC 446 summarises theseprinciples and the same is quoted as under :“19. It is also well to remember the admonition given by thisCourt in Michigan Rubber (India) Limited v. State of Karnatakaand Others, in cases like the present, as under:- (SCC p.228,para 21) 21. “In Jagdish Mandal vs. State of Orissa, the followingconclusion is relevant : (SCC p. 531, para 22) “22. Judicial review of administrative action is intendedto prevent arbitrariness, irrationality, unreasonableness, biasand mala fides. Its purpose is to check whether choice ordecision is made ‘lawfully’ and not to check whether choice ordecision is ‘sound’. When the power of judicial review isinvoked in matters relating to tenders or award of contracts,certain special features should be borne in mind. A contract is acommercial transaction. Evaluating tenders and awardingcontracts are essentially commercial functions. Principles ofequity and natural justice stay at a distance. If the decisionrelating to award of contract is bona fide and is in publicinterest, courts will not, in exercise of power of judicial review,interfere even if a procedural aberration or error in assessmentor prejudice to a tenderer, is made out. The power of judicialreview will not be permitted to be invoked to protect privateinterest at the cost of public interest, or to decide contractualdisputes. The tenderer or contractor with a grievance canalways seek damages in a civil court. Attempts by unsuccessfultenderers with imaginary grievances, wounded pride and 10 of 12 (( 11 ))WP-8708-2024-Judgmentbusiness rivalry, to make mountains out of molehills of sometechnical/procedural violation or some prejudice to self, andpersuade courts to interfere by exercising power of judicialreview, should be resisted. Such interferences, either interim orfinal, may hold up public works for years, or delay relief andsuccour to thousands and millions and may increase the projectcost manifold. Therefore, a court before interfering in tender orcontractual matters in exercise of power of judicial review,should pose to itself the following questions: (i) Whether the process adopted or decision made by theauthority is mala fide or intended to favour someone; OR Whether the process adopted or decision made is soarbitrary and irrational that the court can say: ‘the decision issuch that no responsible authority acting reasonably and inaccordance with relevant law could have reached’; (ii) Whether public interest is affected. If the answers are in the negative, there should be nointerference under Article 226. Cases involving blacklisting orimposition of penal consequences on a tenderer/ contractor ordistribution of State largesse (allotment of sites/shops, grant oflicences, dealerships and franchises) stand on a differentfooting as they may require a higher degree of fairness inaction.”15.Therefore, considering the law laid down by the Hon'bleSupreme Court in case of Vidarbha Irrigation DevelopmentCorporation and Bakshi Security and Personnel Services PrivateLimited cited (supra), as well as considering the fact that the 11 of 12
Decision
(( 12 ))WP-8708-2024-JudgmentPetitioner failed to submit Appendix-III within the stipulated period, itcannot be said that the impugned orders dated 06.05.2024 and01.07.2024, are illegal, bad in law. Therefore, we do not find thatthis case is made out for interference to exercise the writ jurisdictionunder Article 226 of the Constitution of India.16.In view of the above discussions, the Writ Petition isdismissed. Rule is discharged. [ Y. G. KHOBRAGADE, J. ] [ RAVINDRA V. GHUGE, J. ]SMS 12 of 12