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2017 DIGILAW 420 (JK)

S. Balbir Singh v. U. O. I.

2017-07-25

DHIRAJ SINGH THAKUR

body2017
JUDGMENT : 1. With a view to understand the factual background in the light of which the present controversy has arisen, it is necessary to state the material facts in brief. 2. The petitioners are transporters, who own vehicles and tank-lorries and are carrying on the business of transportation of petroleum products in bulk. In the year 2013, Bharat Petroleum Corporation Limited (here-in-after called as BPCL), a public sector undertaking invited tenders from tank-lorry owners for award of road transportation contracts of Bulk Petroleum Products for a period of two years with an option for further extension after one year at the sole discretion of the Corporation. Petitioners participated in the said tendering process and were allotted the transportation contract from 01.01.2014 to 31.12.2016 for locations starting from Jammu. 3. The petitioners claimed to have successfully completed the contract for the aforestated period but since the BPCL could not finalize the new tender for the Jammu Location for the year 2016- 21, a decision was taken to extend the contracts of the petitioners to operate at the same rates. In terms of the decision so taken, the respondents granted extension orders in favour of the petitioners vide communication dated 18.11.2016, whereby the contract of the petitioners was extended from 01.01.2017 to 30.06.2017, or till the new tender was finalized, whichever was earlier. 4. While the petitioners were executing the contracts, the BPCL by virtue of impugned communication dated 10.02.2017 sought expression of interest from the retail outlet dealers owning tank-lorries having low sales for lifting supplies for their own retail outlets. 5. According to the aforesaid communication, a retail outlet owner having low sales was to tie up with another dealer with low sales by making a Dealer Consortium, who then could be permitted to undertake transportation of supplies to their own retail outlets, subject to the certain terms and conditions prescribed in the said communication. It is this communication, inviting expression of interest from such retail outlet owners, that has been questioned in the present writ petition on the ground that the same was unreasonable, as it would violate the rights of the petitioners to undertake transportation of Bulk Petroleum Products as per the extension granted vide communication dated 18.11.2016, which permitted the petitioners to operate till 30.06.2017. 6. 6. It was urged that in terms of the extension order, the petitioners had already altered their position to the detriment and, therefore, the work allotted to the petitioners could not be permitted to be allotted to the retail outlet owners during the period for which the extension was to remain operative. The petitioners thus invoke the principle of Promissory Estoppel and urged that the till the new tenders were finalized, the official respondents had no right to issue the impugned communication. 7. In addition to the above, it was urged that inviting an expression of interest by virtue of the communication impugned, the existing tank-lorry owners and transporters like the petitioners would not get a level playing field with the retail outlet owners with their own tank-lorries. It was further urged that even the retail outlet owners ought to compete with the fleet operators in the tendering process and, therefore, any decision to permit the retail outlet owners to transport their own products to their respective outlets would thus amount to an unreasonable classification and thus be in violation of Article 14 of the Constitution of India. 8. In response to the petition, a detailed reply has been filed by the BPCL, wherein a stand is taken that none of the rights of the petitioners as were assured by the extension orders issued in their favour vide communication dated 18.11.2016 would be violated and that they would be permitted to perform transportation contracts strictly as per the assurance so granted in terms thereof. 9. It was stated that the petitioners had no right to transport the Bulk Petroleum Products beyond the period, which was otherwise covered in terms of the contract granted in favour of the petitioners for the period 01.01.2017 to 30.06.2017. It was further stated that the expression of interest invited from the retail outlet owners to transport their own products after forming of Consortium was strictly in according with the policy decision taken by the Corporation, which was in existence even at the time when the tenders were invited for transportation for the years 2013-16. 10. It was further stated that the expression of interest invited from the retail outlet owners to transport their own products after forming of Consortium was strictly in according with the policy decision taken by the Corporation, which was in existence even at the time when the tenders were invited for transportation for the years 2013-16. 10. It was stated that during the aforesaid period, the contract for transportation of Bulk Petroleum Products was allotted in favour of the successful tenderers only after removing such locations from the transportation contract, for which the existing retail outlet owners had shown interest to transport their own products to such locations owned by them. One such communication dated 15.01.2013 for a period 2013-16 is on record as Annexure-R-4 with the reply. 11. It was further submitted that this policy was in vogue throughout the country and any deviation would create an anomalous situation in the uniform implementation of the policy. 12. Heard learned counsel for the parties. 13. Admittedly, the right of the petitioners for transporting the Bulk Petroleum Products was to survive only for a period of two years with effect from 01.01.2014 to 31.12.2016. This, however, was extended vide communication dated 18.11.2016, whereby the right to transport the Bulk Petroleum Products was extended at the same rates for the period 01.01.2017 to 30.06.2017. This was done on account of the fact that the BPCL had failed to finalize the tender for the period from 2016-21 for operating Ex Jammu location. 14. The case set up by the petitioners in the present writ petition was that the expression of interest impugned in the petition, as seen from communication dated 10.02.2017 would affect their rights of transporting the Bulk Petroleum Products, as per the extension order granted vide communication dated 18.11.2016. The only right, which they claimed was of executing the transportation contracts till 30.06.2017 and nothing beyond that. 15. Learned Senior Counsel, Mr. R.K. Gupta representing the BPCL, however, frankly stated that the petitioners would be permitted to execute the contracts as per the extension granted vide communication dated 18.11.2016 and that the expression of interest was only for finalizing the contracts for the period beyond 01.07.2017 till 2021. If that be so, then impugned communication cannot be said to be affecting any right of the petitioners to transport the Bulk Petroleum Products, which right admittedly is conceded by the Corporation. 16. If that be so, then impugned communication cannot be said to be affecting any right of the petitioners to transport the Bulk Petroleum Products, which right admittedly is conceded by the Corporation. 16. The expression of interest clearly pertains to a period, which shall be relevant for awarding contracts beyond the period covered under the extension orders and appears to be strictly in accordance with the policy decision, which has been in vogue even for the previous contracts, whereby retail outlet owners have been permitted to make supplies to their own outlets by forming a Consortium, incase they owned tank-lorries in that regard. The communication impugned, therefore, cannot not be said to be illegal, arbitrary or otherwise one, which would attract the principle of Promissory Estoppel. 17. The argument that the impugned communication would not allow a level playing field to bulk transporters like the petitioners, in case the retail outlet owners were also permitted to transport their own petroleum products for their own outlets is also an argument, which appears to be legally untenable. It appears that the Corporation, as a matter of policy, allows the retail outlet owners to transport their own products to their outlets, which thus forms a separate class by itself. This classification appears to have been necessitated on account of the fact that such retail outlet owners have low sales and may be in a position to save on transportation costs by forming a Consortium on their own. 18. The scope of judicial review in policy matters even otherwise is no longer res-integra. As held by the Apex Court in “Ekta Shakti Foundation V/s Government of NCT of Delhi” 2006(10) SCC 337 , the scope of judicial review is confined to a question whether the decision taken by the Government is violative of any fundamental right or any statutory rule and not a case where another view is possible. 19. In any case, the petitioners have not set up such a case in the instant writ petition, which was limited to protecting their rights only upto the period as covered by virtue of the orders of extension. 20. Be that as it may, this petition is found to be without any merit and is accordingly, dismissed along with connected MP.