JUDGMENT : Ajay Mohan Goel, J: 1. By way of this petition, the petitioner has prayed for the following reliefs: ? (i) That the revised merit penal as prepared by the respondents may kindly be quashed and set aside. (ii) That excess marks (98) allotted to the respondent No. 3 may be declared illegal and in violation of guidelines issued/followed by the respondents. (iii) That the respondents be directed to reconsider the entire issue strictly in conformity with the guidelines particularly on the aspect of land/site (sale potential, no earth cuttings, no tree cuttings, visibility from road etc.). (iv) That the respondents be directed to consider the documents with respect to financial aspects of the petitioner and to award marks for moveable and immoveable assets after considering the evaluation of the land, shares/fixed deposit offered by the petitioner and liquidity bank account amount offered by the petitioner. (v) That the entire record of the case may kindly be summoned. Or Such other orders which this Hon'ble Court deems fit and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner and against the respondents.? 2. The case as put forth by the petitioner in the present writ petition is as under: Respondents No. 1 and 2 issued an advertisement for allotment of Petrol Pump within two kilometers of vicinity to Village Sulagwan vide advertisement dated 24.10.2010 (not appended with the petition). As per the petitioner, he submitted all necessary papers with regard to land and his financial position and he was fulfilling all necessary conditions as were required for allotment of Petrol Pump as per advertisement dated 24.10.2010. Further as per him, despite the fact that he had placed on record all relevant documents including documents pertaining to his income, moveable immovable assets, however, the documents so placed by him were not correctly appreciated by the respondent-Corporation and that too without assigning any reason whatsoever. Further as per him, despite the fact that he had placed on record all relevant documents including documents pertaining to his income, moveable immovable assets, however, the documents so placed by him were not correctly appreciated by the respondent-Corporation and that too without assigning any reason whatsoever. It was further his case that he had raised objections with respect to site offered by respondent No. 3 on the ground that the site offered by him was not in consonance with the guidelines of respondent-Corporation as the same was not visible from Sulagwan site and there were trees standing on the same as well as the structure existing on the same, his objections were arbitrarily brushed aside and despite the fact that the site offered by respondent No. 3 was not fulfilling the criteria contemplated in the guidelines of the respondent-Corporation, the same was arbitrarily selected. Feeling aggrieved, he filed the writ petition. 3. In their respective replies filed by the respondents, they denied the allegations of the petitioner and stated that the selection of the site of respondent No. 3 was not in violation of the guidelines issued for selection of retail outlet dealers by the respondent-Corporation. It was further stated in the replies by the respondents that the representation filed by the petitioner against his financial evaluation as well as with regard to his objections to the site offered by respondent No. 3 was got duly investigated and after re-evaluation, the grievance raised by the petitioner with regard to his financial assessment was rectified. Further, his objections raised against the site of respondent No. 3 were found to be without merit. It was further stated in the replies that even after the financial re-evaluation of the petitioner, respondent No. 3 remained at No. 1 as per the assessment of the comparative merit of the candidates as assessed by the evaluation committee. On these basis, it was contended by the respondents that there was no merit in the case as the financial evaluation of the petitioner stood corrected and the assessment of the site of all the applicants was done strictly as per the guidelines issued in this regard by the respondent-Corporation. 4. On these basis, it was contended by the respondents that there was no merit in the case as the financial evaluation of the petitioner stood corrected and the assessment of the site of all the applicants was done strictly as per the guidelines issued in this regard by the respondent-Corporation. 4. During the course of arguments, learned counsel for the petitioner relied upon communication dated 4th July, 2014, which was placed on record as Annexure A-1 alongwith CMP No.4264 of 2015 by the petitioner addressed by Sub Divisional Officer (Civil), Bhoranj, District Hamirpur to Deputy Commissioner, Hamirpur, in which it was stated that a joint inspection committee visited the spot on 22.10.2011 and as per the report of the joint inspection committee, the visibility of the proposed site was poor from one side, i.e. Sulgwan town side (i.e. North side of the site) and the PWD authority had issued visibility clearance certificate vide letter dated 18.05.2012 at their own level. She also relied upon another communication on record addressed by Deputy Commissioner, District Hamirpur to Deputy Secretary to the Chief Minister of Himachal Pradesh dated 01.01.2015 on the subject ?Regarding request for issue to open the Petrol Pump?, in which Deputy Commissioner had inter alia mentioned that as per the report of Sub Divisional Officer (Civil), the joint inspection committee which had visited the site on 22.10.2011 had not recommended the case for setting up a retail outlet and further no ?No Objection Certificate? can be issued as the matter was pending in this Court and further the matter cannot be proceeded till the decision of CWP No. 7249 of 2011 pending in this Court. On the strength of these two communications, it was argued by learned counsel for the petitioner that the recommendation which was made by the evaluating committee of respondent-Corporation in favour of the private respondent was bad. 5. In response to this, it was submitted by the learned counsel for the respondent that the site of the petitioner as well as private respondent had been evaluated by Selection Committee which was a committee of experts constituted by the replying respondent and the petitioner cannot question the wisdom and experience of the said committee. 5. In response to this, it was submitted by the learned counsel for the respondent that the site of the petitioner as well as private respondent had been evaluated by Selection Committee which was a committee of experts constituted by the replying respondent and the petitioner cannot question the wisdom and experience of the said committee. Carrying out of inspection by the joint inspection committee headed by Sub Divisional Officer, Bhoranj was denied for want of knowledge by the respondent-Corporation on the ground that the respondent- Corporation was not associated by Government officials while conducting the said inspection. It was further pointed out by the learned counsel for the respondent-Corporation that even otherwise, it was clearly contemplated in the Guidelines for Selection of Retail Outlet Dealers (Annexure-P4) that dealership will be offered to No. 1 candidate in the merit panel on the basis of the interview after necessary field verification and that letter of intent will be issued thereafter. It was also pointed out by the learned counsel for the respondent-Corporation that a person who had been issued the letter of intent was further required to fulfill the terms and conditions of the same and there was also provision of post selection scrutiny of merit panel. 6. On 07.07.2016, this Court after hearing all the learned counsel for the parties passed the following order: ?During the course of arguments, Mrs. Archana Dutt, learned Counsel appearing for the petitioner, submitted that there are two main challenges with regard to allotment of the retail outlet in favour of the private respondent, i.e. (a) wrong evaluation of the income criteria by the respondent-Corporation; (b) wrong evaluation of the site offered by the private respondent, vis-à-vis condition contemplated at Sr. No. 12 in Clause 13, i.e. visibility from road. Mr. Rahul Mahajan, learned counsel appearing for the respondent- Corporation submitted that after the initial evaluation of the parties, complaints were received from the petitioner as well as from Mr. Rajeev Sharma, one of the participants. The said complaints were duly looked into by the Corporation and the grievances raised in the same were also accordingly redressed. According to him, the contentions which are raised in this writ petition were also raised in the said complaints, which were duly redressed by the respondent-Corporation. Rajeev Sharma, one of the participants. The said complaints were duly looked into by the Corporation and the grievances raised in the same were also accordingly redressed. According to him, the contentions which are raised in this writ petition were also raised in the said complaints, which were duly redressed by the respondent-Corporation. A perusal of the record of the case demonstrates that neither the said complaints nor the decision taken by the respondent-Corporation, are on record. Therefore, it is directed that the respondent-Corporation shall place on record both the complaints filed by the present petitioner as well as by Mr. Rajeev Sharma and the decision taken on the said complaints by the respondent- Corporation. Let the needful be done within a period of two weeks. Mr. Rahul Mahajan, learned counsel appearing for the respondent- Corporation, is at liberty to place on record any other documents (s), which may facilitate the adjudication of this case. List for continuation on 03.08.2016.? 7. In compliance to order dated 07.07.2016, the relevant documents stand placed on record by the respondent-Corporation by way of CMP No. 7323 of 2016, which documents with the consent of the parties were permitted to be taken on record vide order dated 14.09.2016. It is evident from the order which was passed by this Court on 07.07.2016 that challenge to the allotment of retail outlet in favour of private respondent was confined by the petitioner on two counts: ?A. wrong evaluation of the income criteria by the respondent-Corporation; B. wrong evaluation of the site offered by the private respondent, vis-à-vis condition contemplated at Sr. No. 12 in Clause 13, i.e. visibility from road.? 8. During the course of arguments, Ms. Archana Dutt, learned counsel for the petitioner addressed this Court on the abovementioned two counts in support of the contention of the petitioner that the allotment of retail outlet in favour of private respondent was not sustainable in law. This Court will deal with both these counts separately. A. Wrong evaluation of the income criteria by the respondent- Corporation: 9. Guidelines for Selection of Retail Outlet Dealers are appended alongwith the petition and Clause 16 of the said guidelines deals with norms for evaluating the candidates. The initial mark sheet for retail outlet dealership subject matter of the present writ petition dated 25.1.2011 is on record as Annexure R1/2 alongwith reply filed by respondents No. 1 and 2. Guidelines for Selection of Retail Outlet Dealers are appended alongwith the petition and Clause 16 of the said guidelines deals with norms for evaluating the candidates. The initial mark sheet for retail outlet dealership subject matter of the present writ petition dated 25.1.2011 is on record as Annexure R1/2 alongwith reply filed by respondents No. 1 and 2. As per this mark sheet, petitioner was initially ranked at Sr. No. 3, whereas one Shri Rajiv Sharma was ranked at Sr. No. 2 and the private respondent was ranked at Sr. No. 1. 10. Thereafter, as is evident from the records, petitioner filed a complaint against the said merit. A perusal of the said complaint demonstrates that final mark list prepared by the respondent-Corporation was challenged by the petitioner on the following grounds: ?A. Land offered by Sunil Kumar was not properly evaluated and he was given marks in contravention of guidelines 12 & 13 12 and 13. B. Land of Sunil Kumar was less visible as it was near a curve and there was no visibility from around 100 metres. C. Trees were standing on the land and a built up structure also existed on the same which required demolition and cutting of rock was also required and as such the site was not suitable for installation of a Petrol Pump. D. Application of Sunil Kumar should have been rejected out rightly as vacant land was not available as per requirement for establishment of a Petrol Pump. E. Even if Sunil Kumar had agreed to demolish the building, he cannot be allowed to fell the trees standing on the land without prior sanction as per law. F. Available frontage was not as per the requirement of HPCCL. G. Site offered by Sunil Kumar was 80-90 metres from Jolly Convent Public School and installation of Petrol Pump near School would adversely affect the students.? 11. It was also mentioned in the said complaint that despite the fact that the petitioner had placed on record documents qua his income as well as moveable and immoveable property, however, zero marks were awarded to him under this head and documents which were placed on record by him in this regard were not considered. As per him, he had also annexed agriculture income certificate for an amount of Rs. As per him, he had also annexed agriculture income certificate for an amount of Rs. 2,40,000/- and had placed on record shares in the name of his unemployed son purchased out of an amount invested in his income, FDRs. and cash shown in the Bank account of the petitioner was also provided, but these documents were not considered. 12. Alongwith CMP No. 7323 of 2016, respondent-Corporation has placed on record copy of communication dated 15.06.2011, vide which the complaints so received by the respondent-Corporation including the complaint of the petitioner were disposed of. A perusal of this communication demonstrates that the complaints so received were duly considered by the Investigating Officer and he advised that the contention of the petitioner stood established to the extent of wrong evaluation of income criteria and the same, accordingly was rectified and thereafter, the petitioner was now scoring 74.18 marks and was placed second in the merit after giving him correct marks for finance. It is further evident from the said communication that the over all merit panel stood unchanged and there was no change in the first empanelled candidate Sunil Kumar, who was awarded 87.55 marks. It is further apparent from the said communication that the allegations of the petitioner with regard to land offered by Sunil Kumar were not found to be correct. The conclusions arrived at after investigation by the respondent-Corporation on the complaint so filed by the present petitioner are quoted hereinbelow: ?In view of above, the investigating officer has advised that the complaint of Shri Ram Chander Pathania stands established and candidate would have scored 74.18 marks and placed second in the merit panel had correct marks for finance were given. Thus the merit panel stands changed. However, there is no change in the status of first empaneled candidate, Shri Sunil Kumar who has been awarded 87.55 marks. The investigating officer has also advised that correct marks have been given by L-1 committee against land for all the candidates. With regard to allegation that the land offered by second candidate is outside the advertised stretch, the investigating officer has advised that allegation could not be substantiated by the complainant. The investigating officer has also advised that correct marks have been given by L-1 committee against land for all the candidates. With regard to allegation that the land offered by second candidate is outside the advertised stretch, the investigating officer has advised that allegation could not be substantiated by the complainant. With regards to marks by TEC against visibility & trees, even if zero marks are given by TEC under these subheads, even than first empaneled candidate, Shri Sunil Kumar would have scored 88 out of 100, thus a total of 30.8 out of 35 against land a grand total of 84.05 marks. As award of marks by technical evaluation committee were not covered by the investigating officer, 3 member team of MT/BK/AN was appointed by GM NZ to carry out fresh evaluation of all the 3 empanelled candidate. We have now received the report and it has been advised that technical evaluation of the sites offered by all the 3 empanelled candidates were carried out. As per the reports submitted by the team, 94 marks are to be awarded to the first empanelled candidate against 98 given earlier; 91 marks to the complainant Shri Ram Chander Pathania against 99 and 81 to second empanelled candidate against 98. The team has also advised that after taking in cognizance, revised marks by the tam as well as report of SRM JLRO, final marks for first empanelled candidate works out to 86.15, for the complainant 71.38 and 65.86 to Shri Rajiv Sharma, who was earlier placed at merit panel 2. It has been advised that status of first empanelled candidate in the merit panel remains same, however, the complainant now becomes second empanelled candidate. With regard to allegation that there is School, it has been reported that the same is approx. 100 mts. Away from Shri Sunil Kumar site and is in the opposite direction of the offered plot. It has also been advised that there is no guidelines for presence of School in near vicinity of offered plot which may lead to rejection of site. It has been advised that Shri Sunil Kumar has shown a letter from the Jolly Convent School management stating that the School has no objection in setting up a outlet at theoffered site. It has also been advised that there is no guidelines for presence of School in near vicinity of offered plot which may lead to rejection of site. It has been advised that Shri Sunil Kumar has shown a letter from the Jolly Convent School management stating that the School has no objection in setting up a outlet at theoffered site. In view of above, it is recommended that region be advised to proceed further with the first empanelled candidate and suitable replies be sent to the complainants. In case the dealership is not commissioned with the first empanelled candidate, region should revert back to zone for taking further action in the matter as per DSG. Investigation reports submitted by SRM JLRO and the 3 member team are attached.? 13. Thereafter, all the applicants were informed by the respondent-Corporation that as per dealer selection guidelines and merit panel scrutiny of the applications submitted by them, on the basis of the documents provided by the said applicants, the merit panel stood revised as under: ―Name of the candidate Revised Merit Panel 1. Shri Sunil Kumar I I 2. Shri Ram Chander Pathania II Shri Rajiv Sharma III 14. This communication in fact is on record appended with the petition also as Annexure P-8. Therefore, it is apparent from the facts taken note of above that on the basis of a complaint which was filed by the present petitioner against the final merit panel, as was finalized by the respondent-Corporation, the applications and documents submitted by the parties were re-scrutinized by the Investigating Officer and report submitted by the Investigating Officer was perused by the competent authority as per dealership guidelines, on the basis of which, the merit panel was revised by granting appropriate marks to the present petitioner for his financial capability, but the fact of the matter still remains that even in the revised merit panel, private respondent Sunil Kumar still remained as the first empanelled candidate. 15. Incidentally, this grievance which was raised by the petitioner in the writ petition about incorrect assessment of his financial capability had already been met with by the respondent-Corporation even before the writ petition was filed and during the course of arguments, this factual position could not be denied by the learned counsel for the petitioner. 15. Incidentally, this grievance which was raised by the petitioner in the writ petition about incorrect assessment of his financial capability had already been met with by the respondent-Corporation even before the writ petition was filed and during the course of arguments, this factual position could not be denied by the learned counsel for the petitioner. Accordingly, challenge to the allotment of retail outlet by the respondent-Corporation in favour of respondent No. 3 on the ground of wrong evaluation of income criteria of the petitioner by respondent-Corporation is totally misconceived and does not has any merit. B. Wrong evaluation of the site offered by the private respondent, vis-à-vis condition contemplated at Sr. No. 12 in Clause 13, i.e. visibility from road.: 16. Before proceeding with this aspect of the matter, it is relevant to take note of Retail Outlet Site Evaluation Parameters as are contemplated in Clause 13 of the Guidelines for selection of Retail Outlet Dealers, which clause deals with the evaluation of the site offered by the applicants, the relevant extract of the same is quoted herein-below: ?13. Evaluation of the site offered by the applicants: The technical/commercial suitability of the land/site offered by the applicants for any location against an advertisement will be ascertained by a committee of HPCL officers before the interview for that location based on the following parameters: Retail Outlet Sit Evaluation Parameters Sl. No. Evaluation Parameter Retail Outlets (Maximum Marks) City/Towns Highways/Rural 1. Sales potential 20 15 2 Frontage 15 12 3 No earth filling required 8 7 4 No earth/rock cutting required 6 4 5 No Low Tension Over Head Line 3 3 6 No Over Head Telephone Line 3 3 7 No Trees 3 2 8 Proximity to culvert (farther from culvert desirable) 2 11 9 Soil Type (Soft) 7 5 10 Availability of Power 10 8 11 Availability of Water 9 8 12 Visibility from Road 7 9 13 No Presence of Divider 7 4 14 Outside Octroi Limits 0 9 Total 100 100 1. Frontage of plot required for dealership will be indicated in the advertisement and plot meeting minimum frontage will be given 80% of the marks and plots with bigger frontage, higher marks upto a maximum of 15 for city outlets and 12 in case of outlets located on Highways/others. 2. Frontage of plot required for dealership will be indicated in the advertisement and plot meeting minimum frontage will be given 80% of the marks and plots with bigger frontage, higher marks upto a maximum of 15 for city outlets and 12 in case of outlets located on Highways/others. 2. In case the land offered is on National Highway the same should meet the criteria as per NHAI guidelines as contained in GOI, Ministry of Road Transport and Highways letter No. RW/NH-33023/19/99-DO-III dated 25.9.03/17.10.03 and further amendment if any, as applicable from time to time, failing which the offered land will not be evaluated as above and the candidate will be treated at par with those candidates who have not offered land. If high-tension overhead line more than 11 KV passes over the plot, the same will be disqualified. However, against item 5, Zero Marks will be given, without disqualifying, if over head electric line is less than or equal to 11 KV, passing through the plot. The shifting of the same will be at the cost of the applicant concerned. The offered land should also meet norms of statutory bodies like forest, explosive etc. and land should be convertible for commercial and petrol pump use. 3. In case the land is located on Highway but within town/city limit, such land will be evaluated on parameters as applicable to town/city and not as applicable to Highway/others as may be applicable as per NHAI Guidelines for setting up retail outlets. 4. During the interview, the site selection report in respect of the site offered by an applicant will be shown to the concerned applicant. 5. The land offered by an applicant for Rural Location (Hamara Pump) and HP Raja would also be evaluated as per the criteria above. However the selected candidate for Hamara Pump and HP Raja category of outlets, after placement of LOI, would be required to fill the land to the satisfaction of HPCL upto plinth level including the retaining wall and offer the same to HPCL for setting up the facilities.? 17. The site subject matter of the present writ petition falls under the head ?Highway/Rural/Others?. A perusal of the relevant extract of Clause 13 of the Guidelines demonstrates that there are maximum marks mentioned against 14 paramaters under Retail Outlet Site Evaluation Parameters. Sr. 17. The site subject matter of the present writ petition falls under the head ?Highway/Rural/Others?. A perusal of the relevant extract of Clause 13 of the Guidelines demonstrates that there are maximum marks mentioned against 14 paramaters under Retail Outlet Site Evaluation Parameters. Sr. No. 12 of the same which deals with Visibility from Road provides 9 marks as maximum marks which can be granted against this Sr. No. for a retail outset site which falls on Highway/Rural/Others. In other words, it is not as if visibility from road is a sine qua non for being eligible to be allotted a retail outlet site. It is in this background that this Court will deal with the objections of the petitioner that site has been offered by the respondent-Corporation to private respondent by wrongly evaluating condition contemplated at Sr. No. 12 in Clause 13, i.e. Visibility from Road. 18. Annexure R-1/4 appended with the reply filed by the respondent-Corporation contains Technical Evaluation done by the respondent-Corporation of the Proposed Sites offered by the petitioner as well as respondent Sunil Kumar. At page 96 of the paper-book, technical evaluation of the proposed site of the petitioner has been given based on visit dated 20.05.2011 and as per the said technical evaluation, the petitioner has been granted 91 marks on the basis of the guidelines so framed for allotment of the site. At page 97 of the paper-book, technical evaluation of the proposed site of the private respondent, namely Sunil Kumar is given wherein Sunil Kumar has been granted 94 marks on the basis of the abovementioned guidelines. Further, a perusal of the technical evaluation of the proposed site of the petitioner as well as private respondent demonstrates that sites of both the parties were accepted, however, the evaluation committee has given more marks to Sunil Kumar and the same have been explained under the heading brief reasons. Further, a perusal of the technical evaluation of the proposed site of the petitioner as well as private respondent demonstrates that sites of both the parties were accepted, however, the evaluation committee has given more marks to Sunil Kumar and the same have been explained under the heading brief reasons. Details of the marks allotted to the petitioner and private respondent by the evaluating committee are being reproduced herein-below: TECHNICAL EVALUATION OF THE PROPOSED SITE Name of the applicant/applicants Ram Chander Pathania Name of the Location IN OR WITHIN 2KMS OF SULAGWAN District HAMIRPUR Zone North State HP Region SHIMLA Highway SH Sales Area MANDI Name of the owner(s) Ram Chander Pathania Does Site Meets Local Condition Yes Key Plan of Site ATTACHED Current 7/12 Extract NA Khasra No. of land offered 1380/1255/2, 320/1 Title Deed for Site Ownership ATTACHED Urban Land Ceiling Clearance NA Income Tax Clearance NA Non encumbrance certificate NA Area of the Plot (Applied) >400SQ MTRS Total Plot Area available with Applicant/Applicants >400SQ MTRS Encroachment if any Nil A) Existing structures No B) Religious structures No C) Others (Details) No Details of any road Nil Pathway Crossing the land No Suitability of location of the plot OK Existing retail outlet volumes Vol. (MS/HSD) kl/month within 15 kms HPC 1 40 BPC 1 120 IOC/IBP 1 80 Proposed retail outlets HPC 1 80 BPC 1 80 IOC/IBP - - Estimated volumes from site MS/HSD 15/70 Importance of location: (Historical place/Halting point etc.) Site: Accepted/Rejected Accepted HIGHWAY MARKS 1. Sales potential OK 15 2. Frontage >20MTRS 12 3. No earth filling required 3mtrs Avg flg 0 4. No earth/rock cutting required Nil 4 5. No LT O/H Line No 3 6. No O/H Tel Line No 3 7. Number of trees to be cut Nil 2 8. Proximity to culvert (farther from culvert desired) No 11 9. Soil type (soft) Yes 5 10. Availability of Electricity Connection Yes 8 11. Availability of Water Connection Yes 8 12. Visibility from Road Slight curve on one side 7 13. No presence of Divider NA 4 14. Number of trees to be cut Nil 2 8. Proximity to culvert (farther from culvert desired) No 11 9. Soil type (soft) Yes 5 10. Availability of Electricity Connection Yes 8 11. Availability of Water Connection Yes 8 12. Visibility from Road Slight curve on one side 7 13. No presence of Divider NA 4 14. Outside Octroi Limit NA 9 Total 91 Evaluating committee Signatures Name ADITYA N SINGH BHARAT KAUL MANISH TANDON Designation SR OFFICER-RU MGR-E&P, JLRO SR MGR-RE, NZ Date of visit 20.05.11 TECHNICAL EVALUATION OF THE PROPOSED SITE Name of the applicant/applicants Sunil Kumar Name of the Location IN OR WITHIN 2KMS OF SULAGWAN District HAMIRPUR Zone North State HP Region SHIMLA Highway SH Sales Area MANDI Name of the owner(s) Sunil Kumar Does Site Meets Local Condition Yes Key Plan of Site ATTACHED Current 7/12 Extract NA Khasra No. of land offered 1532/1171 Title Deed for Site Ownership ATTACHED Urban Land Ceiling Clearance NA Non Agriculture Conversion NA Income Tax Clearance NA Non encumbrance certificate NA Area of the Plot (Applied) >400SQ MTRS Total Plot Area available with Applicant/Applicants >400SQ MTRS Encroachment if any Nil A) Existing structures One House, however applicant has more Area than required (400 SQ Mtrs) apart from house. B) Religious structures Nil C) Others (Details) No Details of any road Nil Pathway Crossing the land No Suitability of location of the plot OK Vol. (MS/HSD) Existing retail outlet volumes kl/month within 15 kms HPC 1 40 BPC 1 120 IOC/IBP 1 80 Proposed retail outlets HPC 1 80 BPC - - IOC/IBP Estimated volumes from site MS/HSD 15/70 Importance of location: (Historical place/ Halting point etc.) Site: Accepted/Rejected Accepted HIGHWAY MARKS 1. Sales potential OK 15 2. Frontage 30MTRS 12 3. No earth filling required 1.5 MTRS AVG FLG 3 4. No earth/rock cutting required Nil 4 5. No LT O/H Line No 3 6. No O/H Tel Line No 3 7. Number of trees to be cut Nil 2 8. Proximity to culvert (farther from culvert desired) No 11 9. Soil type (soft) Yes 5 10. Availability of Electricity Connection Yes 8 11. Availability of Water Connection Yes 8 12. Visibility from Road Slight curve on one side 7 13. No presence of Divider NA 4 14. Number of trees to be cut Nil 2 8. Proximity to culvert (farther from culvert desired) No 11 9. Soil type (soft) Yes 5 10. Availability of Electricity Connection Yes 8 11. Availability of Water Connection Yes 8 12. Visibility from Road Slight curve on one side 7 13. No presence of Divider NA 4 14. Outside Octroi Limit NA 9 Total 94 Evaluating committee Signatures Name ADITYA N SINGH BHARAT KAUL MANISH TANDON Designation SR OFFICER-RU MGR-E&P, JLRO SR MGR-RE, NZ Date of visit 20.05.11 19. This site visit was conducted post the complaint filed by the present petitioner against the earlier evaluation. During the course of arguments, learned counsel for the petitioner again and again was harping on this aspect of the matter that respondents No. 1 and 2 could not have had accepted the site of the private respondent because the same was not clearly visible from the road. When this Court called upon the learned counsel for the petitioner to point out from the guidelines as to where was it contemplated in the guidelines that there has to be clear visibility from the road and in case the said visibility was impaired in some manner, then this amounted to outright disqualification, learned counsel for the petitioner could not point out any such provision in the guidelines. 20. On the other hand, learned counsel representing the respondents stated that in fact there was no such stipulation contained in the guidelines that if there was any impairment in the visibility of the site from the road, then the same amounted to outright rejection of the site. As per them, all that the guidelines contained at Sr. No. 12 in Clause 13 of the guidelines was that the maximum marks which could be given to an applicant against the heading Visibility from Road were 9 marks and in the present case, on the basis of the visibility of the site from the road offered by the parties, they were given 7 marks. 21. In this view of the matter, it was argued that there was no merit in the contention of the learned counsel for the petitioner that the evaluation of the private respondent at Sr. 21. In this view of the matter, it was argued that there was no merit in the contention of the learned counsel for the petitioner that the evaluation of the private respondent at Sr. No. 1 for the purpose of allotment of the site is in violation of the guidelines so framed by the respondent-Corporation or the sight offered by the private respondent ought to have been rejected simply on the alleged ground that the same was not visible from the road. 22. In my considered view, there is merit in the contention of the learned counsel for the respondents. A perusal of the guidelines clearly demonstrates that there is no such embargo contained in the same that in case site offered by a party is not completely visible from the toad, then the site has to be outrightly rejected. In fact under the heading ?Visibility from Road?, 9 marks have been contemplated in the Regulations which obviously means that while assessing the comparative merit of parties, marks under this particular head are to be awarded keeping in view the visibility of the site. 23. Even otherwise, in my considered view, whether or not the site is suitable for the purpose of setting up a retail outlet is a decision which has to be taken by the respondent- Corporation and the satisfaction of the respondent-Corporation cannot be made subject to judicial review until and unless it can be pointed out by a party that the satisfaction was erroneous or not based on merits but was influenced by motive. In the present case, neither any specific motive has been imputed against anyone for evaluating private respondent the most meritorious party nor any malafides have been alleged or proved which could have had vitiated the evaluation so made in favour of the private respondent by the evaluating committee of the respondent-Corporation. 24. While exercising the power of judicial review, this Court is not to see as to what is the final decision which has been arrived at but what this Court has to adjudge is as to whether the course adopted to reach at that final decision is the correct course or not. 25. 24. While exercising the power of judicial review, this Court is not to see as to what is the final decision which has been arrived at but what this Court has to adjudge is as to whether the course adopted to reach at that final decision is the correct course or not. 25. Coming to the facts of the present case, during the course of arguments, learned counsel for the petitioner could not point out that while arriving at the conclusion that the private respondent was most meritorious applicant, the procedure prescribed in the guidelines for grant of retail outlets was not followed by the respondent-Corporation or that the said decision was a motivated decision. 26. In Tata Cellular Vs. Union of India (1994) 6 Supreme Court Cases 651, a three Judges Bench of the Hon'ble Supreme Court has held that it is not for the Court to determine whether a particular policy or particular decision taken in the fulfillment of that policy is fair. The Hon'ble Supreme Court has held that the Court is only concerned with the manner in which those decisions have been taken and the extent of the duty to act fairly will vary from case to case. In para 94 of the said judgment, the Hon'ble Supreme Court while laying down the principles of judicial review in the matter of Government's freedom of contract has held as under: ?94. The principles deducible from the above are: (1) The modem trend points to judicial restraint in administrative action. (2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made. (3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible. (4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts. (5) The Government must have freedom of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts. (5) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides. (6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure. Based on these principles we will examine the facts of this case since they commend to us as the correct principles. 27. The Hon'ble Supreme Court in Michigan Rubber (India) Limited Vs. State of Karanatka and others (2012) 8 Supreme Court Cases 216 has held: ?23. From the above decisions, the following principles emerge: (a) the basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. These actions are amenable to the judicial review only to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities; (b) fixation of a value of the tender is entirely within the purview of the executive and courts hardly have any role to play in this process except for striking down such action of the executive as is proved to be arbitrary or unreasonable. If the Government acts in conformity with certain healthy standards and norms such as awarding of contracts by inviting tenders, in those circumstances, the interference by Courts is very limited; (c) In the matter of formulating conditions of a tender document and awarding a contract, greater latitude is required to be conceded to the State authorities unless the action of tendering authority is found to be malicious and a misuse of its statutory powers, interference by Courts is not warranted; (d) Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work; and (e) If the State or its instrumentalities act reasonably, fairly and in public interest in awarding contract, here again, interference by Court is very restrictive since no person can claim fundamental right to carry on business with the Government. 24. Therefore, a Court before interfering in tender or contractual matters, in exercise of power 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 negative, then there should be no interference under Article 226.? 28. The Hon'ble Supreme Court in Sanjay Kumar Shukla Vs. Bharat Petroleum Corporation Limited and others (2014) 3 Supreme Court Cases 493 has struck a note of caution with regard to exercise of its powers under Article 226 by a High Court particularly in contractual matters. The Hon'ble Supreme Court has in fact held: ?15. 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. 16. In Raunaq International Ltd. Vs. The present, therefore, may be an appropriate occasion to recall some of the observations of this Court in the above context. 16. 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. (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 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.? 17. In Air India Ltd. Vs. Cochin International Airport Ltd. & Ors., 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, Fertilizer Corpn. 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, Fertilizer Corpn. Kamgar Union (Regd.) v. Union of India, CCE v. Dunlop India Ltd., Tata Cellular v. Union of India, Ramniklal N. Bhutta v. State of Maharashtra and Raunaq International Ltd. v. I.V.R. Construction Ltd. 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 supplied) 18. A similar reiteration is to be found in Master Marine Services (P) Ltd. Vs. Metcalfe & Hodgkinson (P) Ltd. & Anr.; Tejas Constructions and Infrastructure Private Limited Vs. Only when it comes to a conclusion that overwhelming public interest requires interference, the court should intervene.? (emphasis supplied) 18. A similar reiteration is to be found in Master Marine Services (P) Ltd. Vs. Metcalfe & Hodgkinson (P) Ltd. & Anr.; Tejas Constructions and Infrastructure Private Limited Vs. Municipal Council, Sendhwa and Another and several other pronouncements reference to which would only be repetitive and, therefore, is best avoided. 19. 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. 20. 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 bona-fide 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. 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.? 29. Relying upon the said judgment of the Hon'ble Supreme Court, the Hon'ble Division Bench of this Court in LPA No. 62 of 2013, titled Mr. Sunil Kumar Vs. Indian Oil Corporation Ltd. (IOC) & others has held: ?15. We also deem it proper to record herein that the Apex Court in a recent judgment in the case titled as Sanjay Kumar Shukla Vs. M/s. Bharat Petroleum Corporation Ltd. & Ors., reported in 2014 AIR SCW 4945, has commanded that the Courts should be cautious in entertaining the writ petitions which are aimed at to prevent the eligible candidate to reap the fruits of selection. It is apt to reproduce para 15 of the judgment herein: ?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. 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. 30. Therefore, in light of the discussion held above and the law discussed above, it cannot be said that assessment made by the respondent-Corporation whereby private respondent has been assessed as No. 1 candidate in the merit panel can be faulted with. It cannot be said that the conclusion so arrived at by the respondent-Corporation is either arbitrary or the same has been arrived at in violation of the guidelines framed in this regard by the respondent- Corporation. It could not be pointed out by the petitioner that the conclusion so arrived at by the respondent-Corporation was otherwise arrived on the basis of some ulterior motive or the same was motivated. 31. Therefore, in my considered view, there is no merit in the present petition and the same is accordingly dismissed, so also the pending application (s), if any. Interim orders, if any, also stand vacated. No order as to costs.