Smt. Neeta Tiwary .... .... … v. Hindustan Petroleum Corporation Limited, Jamshedpur & Others CORAM : HON’BLE
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (C). No.6371 of 2018 ------ Smt. Neeta Tiwary .... .... …. Petitioner Versus Hindustan Petroleum Corporation Limited, Jamshedpur & Others CORAM : HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY .... .... .... Respondents ------ For the Petitioner For the Respondents ------
Legal Reasoning
: Mr. Mahesh Tewari, Advocate Mr. Anand Kr. Pandey, Advocate : Mr. Amit Kr. Tiwari, Advocate Ms. Nidhi Rani, Advocate Mr. Rahul Lamba, Advocate Rahul Kr. Gupta, Advocate ------ Order No:-08 Dated:-05-03-2024 I.A. No.10381 of 2023 Heard the parties. 2. This interlocutory application has been filed with a prayer to amend the instant writ petition as proposed in paragraph-14 of this interlocutory application by making additional prayer for issuance of a writ in the nature of certiorari for quashing the advertisement in respect of item No.74 for the site at Village- Kajru Kalan, Pandu in the district of Palamau as published in the newspaper “Prabhat Khabar” on 06.10.2023 and to make averments in respect of allowing such prayer inter alia to the effect that despite rejection of LOI of the respondent No.4- Smt. Abha Tiwary and despite the existing procedures for re-draw for the purpose of selection amongst the remaining eligible applicants including the petitioner, no step has been taken by the respondents although the same remained pending since long and to the effect that the petitioner has published a fresh advertisement in respect of the same site at village- Kajru Kalan, Pandu in local newspaper “Prabhat Khabar” on 06.10.2023 ignoring the previous decision for re-draw for selection amongst the remaining eligible candidates. 3. It is then submitted that the last date of submission of application was fixed as 05.11.2023 but subsequently in another notice published in the newspaper on 05.11.2023, it has been shown to be extended up to 01.12.2023. It is submitted by the learned counsel for the petitioner that the amendment is necessitated by the developments which took place after filing of the writ petition. It is next submitted by the learned counsel for the petitioner that the respondent No.1 published a brochure the advertisement dated 13.08.2017 according to serial No. 20 of which, in case its website before in any selected candidate surrenders allotment then a re-draw is to be held for selecting the next candidate amongst the remaining applicants and the respondents have failed to adhere to the said condition in Serial No.20 of the brochure and instead having cancelled the advertisement dated 13.08.2017 itself; vide the publication made by way of advertisement in daily newspaper dated 13.06.2023; the copy of which has been annexed as Annexure-11 of this interlocutory application at page-22 but in terms of Serial No.20 of the said brochure ignoring the fact that a list of applicant found for re-draw of selection of L.P.G. Distributor including the petitioner, was published in the website of the respondent No.1, the copy of which has been kept at Annexure-12. It is then submitted that thus the petitioner has the subsisting right even after cancellation of the said advertisement. Hence, even though the petitioner has not participated in the subsequent advertisement dated 06.10.2023 and since she has a right for allotment of the L.P.G. Distributorship for Village- Kajru Kalan, Pandu in the district of Palamau, in view of Clause 20 of the said brochure, therefore, she has the right to challenge the validity of the advertisement dated 06.10.2023. Hence, it is submitted that the said proposed amendment be allowed. 4. Learned counsel for the respondent Nos.1 to 3 and 5 on the other hand vehemently opposes the prayer to amend the writ petition. Learned counsel for the respondent Nos.1 to 3 and 5 draw the attention of this Court towards Clause No. 5 (Ka) of the Annexure-1 of the writ petition and submits that there was a condition according to which the respondent No.1 can cancel, withdraw, modify the advertisement as per its own will without assigning any reason and knowing the said condition, with his eyes open; the petitioner having participated in the process and undisputedly the said advertisement has been cancelled and as is evident from Annexure-11 of this interlocutory application; so, the terms and conditions of the brochure which were related to the said advertisement dated 13.08.2017, no more subsists. It is then submitted that, the advertisement dated 06.10.2023 is a separate and distinct advertisement having no link with the advertisement dated 13.08.2017 which was modified vide 15.09.2017 but subsequently cancelled. It is next submitted that since the petitioner has admittedly not participated in the tender dated 06.10.2023, she has no right to challenge the same. It is also submitted that, allowing the proposed amendment will amount to allow adjudication of a new and different case which is not permissible in law. 5. Mr. Rahul Gupta- learned counsel relies upon the judgment of Hon’ble Supreme Court of India in the case of Edukanti Kistamma v. S. Venkatareddy reported in (2010) 1 SCC 756 para-22 of which reads as under:- 22. It is a settled legal proposition that challenge to consequential order without challenging the basic order/statutory provision on the basis of which the order has been passed cannot be entertained. Therefore, it is a legal obligation on the part of the party to challenge the basic order and only if the same is found to be wrong, consequential order may be examined (vide P. Chitharanja Menon v. A. Balakrishnan [(1977) 3 SCC 255 : 1977 SCC (L&S) 378 ; H.V. Pardasani v. Union of India [(1985) 2 SCC 468 : 1985 SCC (L&S) 482 : AIR 1985 SC 781] ; and Govt. of Maharashtra v. Deokar’s Distillery [(2003) 5 SCC 669 : AIR 2003 SC 1216] ). (Emphasis supplied) : AIR 1977 SC 1720] and submits that the Hon’ble Supreme Court of India has reiterated the settled legal proposition that challenge to consequential order without challenging the basic order, on the basis of which the order has been passed cannot be entertained. It is next submitted that therefore, the petitioner has not challenged the cancelled the advertisement dated 13.08.2017 as made in the newspaper publication dated 13.06.2023 and with such cancellation every right which the petitioner purported to have, extinguished. So, there is no justification for allowing the petitioner to challenge the advertisement dated 06.10.2023; by way of Amendment of the original writ petition. 6. Mr. Rahul Gupta next relies upon the judgment of the Hon’ble Supreme Court of India in the case of Food Corporation of India & Others v. Jagannath Dutta & Others reported in 1993 Supp (3) SCC 635 paragraph- 5 of which reads as under:- 5. We are of the view that the High Court was not justified in quashing the impugned notice especially when the terms and conditions of the contract permitted the termination of the agreement by either of the parties. The High Court should not have gone into the question of contractual-obligation in its writ jurisdiction under Article 226 of the Constitution. Even otherwise the High Court misread the documents on the record and grossly erred in reaching the conclusion that no policy decision was taken by the FCI to terminate the storage agencies in the State of West Bengal. We may refer to some of the documents on the record. (Emphasis supplied) and submits that if the terms and conditions of the contract permitted the termination of the agreement by either of the parties the High Court ought not have gone into the question of contractual-obligation in its writ jurisdiction under Article 226 of the Constitution. 7. In this respect, Mr. Rahul Gupta also relies upon the judgment of Hon’ble Supreme Court of India in the case of National High Speed Rail Corpn. Ltd. v. Montecarlo Ltd. reported in (2022) 6 SCC 401 paragraph-29 of which reads as under:- 29. Thus, from the aforesaid decisions, it can be seen that a court before interfering in a contract matter in exercise of powers of judicial review should pose to itself the following questions: (i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; or whether the process adopted or decision made is so arbitrary and irrational that the court can say:“the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached”? And (ii) Whether the public interest is affected? If the answers to the above questions are in the negative, then there should be no interference under Article 226. and submits that admittedly this being a subject matter of this writ petition being a contract matter, the writ court can examine in exercise of its power of judicial review as to whether the process adopted or decision made by the authority is mala fide or intended to favour someone and whether the process adopted or decision made is so arbitrary and irrational that the court can say “the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached” and secondly whether public interest is affected. 8. Mr. Gupta next submits that admittedly the petitioner has not participated in the advertisement dated 06.10.2023. There is no allegation against the respondent No.1 or any of its officer of having any mala fide or any intention to favour someone nor is there any allegation that the process adopted or decision made is so arbitrary and irrational that the court can say “the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached nor any public interest is affected by the advertisement dated 06.10.2023, hence, the same is not open to be challenged. Hence, it is submitted that this interlocutory application, being without any merit, be dismissed. 9. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, this Court is of the considered view that this writ petition has been filed challenging the action of the respondent Nos.1 to 3 and 5 in rejection of the complaint of the petitioner made on 25.01.2018 vide order dated 26.10.2018 which relates to the advertisement dated 13.08.2017 which was modified on 15.09.2017. The brochure referred to by the learned counsel for the petitioner was before the publication of the said advertisement and the terms and conditions of the brochure was obviously limited to the said advertisement dated 13.08.2017. Undisputedly, vide Annexure-11- which is the copy of the advertisement published in the daily newspaper “Prabhat Khabar” dated 13.06.2023, the said advertisement dated 13.08.2017 has been cancelled. As is evident from Clause No. 5 (Ka) (Annexure-1 of the writ petition) which is the original advertisement dated 13.08.2017, the respondent No.1 reserved the right to cancel the said advertisement without assigning any reason. The cancellation of the said advertisement is not challenged by the writ petitioner. This Court has no hesitation in holding that once the said advertisement dated 13.08.2017 has been cancelled; by virtue of such cancellation, all the rights that could have accrued to the petitioner by the consequent upon his participating in the advertisement dated 13.08.2017; has been extinguished, more so as the said cancellation of the advertisement is not under challenge. 10. Under such circumstances, this Court is of the considered view that the advertisement dated 06.10.2023 is a separate and distinct advertisement without having any trail of the earlier advertisement. Undisputedly, the petitioner has not participated in the advertisement dated 06.10.2023. Therefore, this Court is not inclined to allow the prayer of the petitioner to incorporate the prayer of challenging the advertisement dated 06.10.2023 in
Decision
this writ petition and the grounds for such challenge in the writ petition by way of amendment as the same will amount to introducing a new cause of action different from the subject matter of this writ petition; which is needless to mention is not permissible in law. 11. Accordingly, this Interlocutory Application, being without any merit, is dismissed. (Anil Kumar Choudhary, J.) W.P. (C). No.6371 of 2018 Learned counsel for the petitioner submits that in view of the order passed today in I.A. No.10381 of 2023, this writ petition has become infructuous. Accordingly, this Writ Petition stands disposed of being infructuous. (Anil Kumar Choudhary, J.) AFR-Animesh/