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2017 DIGILAW 572 (JK)

Gurmeet Singh v. U. O. I.

2017-08-08

JANAK RAJ KOTWAL

body2017
JUDGMENT : MP No. 05/2017: 1. Heard. 2. After arguing for a while, learned counsel for the respondents withdraw their objection to placing on record the copy of the supplementary affidavit said to have been filed on behalf of the petitioners in the registry. This MP is, therefore, allowed and the copy of supplementary affidavit is taken on record. OWP No. 567/2017: 3. Heard learned counsel for the parties and perused the record. 4. The Hindustan Petroleum Corporation Limited (HPCL), herein respondents 2 and 3, (hereinafter to be referred as the respondent-Corporation) issued Tender Notice No. HPC/NZ/BULK/POL/2013-14/20 inviting sealed tenders under two bid system from Tank Truck (TT) owners for award of contract for road transportation of bulk White Petroleum Products (MS, HSD and KSO) from its Jammu and Srinagar Oil Depots to different destinations in the State of Jammu and Kashmir including Leh and Kargil Sectors for a period of five years w.e.f. 01.10.2014. Petitioners participated and succeeded in the tendering process and contract for bulk transportation of the said products by road from Jammu and Srinagar Depots to different destinations in the state were allotted in their favour. Anticipated volume to be transported was given in the tender notice and volumes to be transported to different destinations by the different contractors (petitioners) was reflected in their respective letter of allotment. Respondent-Corporation has issued another tender inviting notice under No. 17000025-Hd-10157 on 13.04.2017 whereby e-tenders under two bids system have been invited for road transportation of bulk white oil petroleum products (MS, HSD and SKO) from their Bhatinda Depot and Ramanmandi terminal of HMEL to various consignees of the Army and DGBR in Leh (via Rohtang pass) to meet defence requirement of Advanced Winter Stocking for a period of two years, expandable by one more year w.e.f. the date of signing the Agreement. 5. In this writ petition, petitioners seek writ of certiorari quashing the Tender Notice (NIT) dated 13.04.2017 (supra). Further they seek writ of prohibition restraining the respondent- Corporation from allotting any transport contract in terms of the said NIT and writ of mandamus commanding the respondent-Corporation to allow the petitioners to lift the said products from Jammu and Srinagar Oil Depots. 6. Further they seek writ of prohibition restraining the respondent- Corporation from allotting any transport contract in terms of the said NIT and writ of mandamus commanding the respondent-Corporation to allow the petitioners to lift the said products from Jammu and Srinagar Oil Depots. 6. The petitioners assail the impugned NIT dated 13.04.2017 primarily on the ground that they have already been allotted contract for a period of five years so issuance of the impugned NIT infracts the letters of allotment issued in their favour. In addition, it is contended that petitioners are performing their job with sincerity and to the full satisfaction of the respondent-Corporation. Most of them are small transporters and the transportation of these products is their only source of livelihood. The respondent-Corporation is under an obligation to get the transportation of the petroleum products done within the State of Jammu and Kashmir through the petitioners only in terms of the allotment of contract in their favour and are required to act fairly and without any bias. The respondent- Corporation is under contractual obligation to perform their part of contract. Respondent- Corporation is bound by the principle of promissory estoppel and they cannot allot any work which has already been allotted to the petitioners. The issuance of impugned NIT is totally a colourable exercise of power on the part of the respondent-Corporation and issuance of impugned NIT is violative of their Fundamental Right enshrined under Articles 14, 19 & 21 of the Constitution. 7. The unequivocal and precise stand of the respondent-Corporation is that the earlier NIT and allotment of contract in favour of the petitioners is confined to transportation of the petroleum products from Jammu and Srinagar Depots whereas the impugned NIT relates to transportation of petroleum products from Bathinda Depot and Ramanmandi Depot. The petitioners do not have any right or claim to the transportation contemplated under the fresh NIT. 8. Learned counsel for the petitioners, Mr. Amit Gupta, urged that with the allotment of the contracts in favour of the petitioners they have the exclusive right of road transportation of White Petroleum Products to different destinations in the State of Jammu and Kashmir including Army supply to Leh so the respondent-Corporation cannot make any arrangement to arrange such supply from outside the State through another agency. Amit Gupta, urged that with the allotment of the contracts in favour of the petitioners they have the exclusive right of road transportation of White Petroleum Products to different destinations in the State of Jammu and Kashmir including Army supply to Leh so the respondent-Corporation cannot make any arrangement to arrange such supply from outside the State through another agency. Learned counsel would say that transportation even from outside the State is also covered under the contracts allotted to the petitioners and the same meaning to the contracts allotted to them has earlier been given by the respondent-Corporation as the Tank Trucks of the petitioners have been used for transportation of petroleum products from Bathinda Depot and Ramanmandi Depot to different destinations in the State. In support of this contention, learned counsel refers to the communications of the respondent-Corporation to some of the petitioners, which are annexed to the supplementary affidavit. 9. Per contra, Mr. R. P. Sharma, learned counsel appearing for respondent-Corporation reiterated that the transportation of petroleum products from Bathinda Depot and Ramanmandi Depot is not covered in the contracts allotted to the petitioners and petitioners have no locus standi to challenge the impugned NIT nor have they any enforceable right to claim transportation from these two destinations. In regard to the communications annexed to the supplementary affidavit, learned counsel pointed out that they refer to some occasional arrangements made by the respondent-Corporation with the consent of the petitioners and do not mean the expansion of the contracts allotted to the petitioners. 10. Important facets of the NIT, whereby allotment of contracts have been made in favour of the petitioners, have been noticed. The NIT unequivocally provided that the transportation was to be made from the Jammu Depot and the Srinagar Depot of the respondent-Corporation to different destinations in the State of Jammu and Kashmir. It also provided for the estimated volume to be transported. The take off point and the destination as also the respective rates have been duly reflected in the letter of allotment issued to the individual petitioner. The allotment letters, copies whereof are annexed to the writ petition, do not contemplate, either directly or by implication, the possibility of any deviation from the specified take off point and the destination. The take off point and the destination as also the respective rates have been duly reflected in the letter of allotment issued to the individual petitioner. The allotment letters, copies whereof are annexed to the writ petition, do not contemplate, either directly or by implication, the possibility of any deviation from the specified take off point and the destination. The transportation contemplated under the impugned NIT on the other hand is entirely different from the transportation covered under the earlier NIT and the letters of allotment issued to the petitioners. 11. Petitioners’ claim to take up the transportation covered under the impugned NIT under the garb of the contracts allotted to them is too farfetched and absolutely beyond the scope of contracts allotted to them. Contention of the petitioners that respondent-Corporation had earlier expanded the scope of contracts allotted to them to transportation of petroleum products from Bathinda Depot and Ramanmandi Depot is without any substance and not tenable. The annexures to the supplementary affidavit filed on behalf of the petitioners would indicate at the most that occasionally respondent-Corporation had with the consent of the petitioners availed the service of the Tanker Trucks provided by them in terms of the contracts allotted for transportation of petroleum products from Bathinda Depot and Ramanmandi Depot to some destinations in the state of Jammu and Kashmir. Such a service having been availed by the respondent-Corporation by no stretch of interpretation can be taken as expansion of the scope of contracts allotted to them. 12. Administrative actions including award of contracts by the State or its instrumentalities generally are not amenable to the judicial review and greater latitude is required to be conceded to the State and its instrumentalities in this sphere. No person can claim a Fundamental Right to carry on business with the Government or its instrumentalities. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest. Such administrative actions, however, 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. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest. Such administrative actions, however, 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 or its instrumentalities act reasonably, fairly and in public interest in awarding Contract interference by court is very restrictive (See Michigan Rubber (India) Limited vs. State of Karnataka and Others, (2012) 8 SCC 216 and Jagdish Mandal vs. State of Orissa and Others, (2007) 14 SCC 517). 13. No violation of the contracts allotted to the petitioners can be said to have been committed by the respondent-Corporation by issuing the NIT for transportation of similar products, which are other than the subject matter of the contracts allotted to the petitioners. In no way the respondent-Corporation can be said to have acted arbitrarily or actuated with mala-fide or in biased manner in issuing the impugned NIT. The transportation contemplated under the impugned NIT is in the general public interest for winter stocking for the defence purposes and petitioners assail to the NIT is totally misconceived and without backing of any enforceable right in their favour. 14. Hence this writ petition is dismissed. Interim direction issued by this Court now stands vacated. 15. Disposed of.