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2019 DIGILAW 844 (CAL)

Soumitra Hazra v. Indian Oil Corporation Ltd.

2019-09-05

SHEKHAR B SARAF

body2019
JUDGMENT : Shekhar B Saraf, J. This is an application under Article 226 of the Constitution of India wherein the writ petitioner has challenged the validity/legality of award of a contract given by the Indian Oil Corporation Limited (hereinafter referred to as 'IOCL') to one Mr. Dipankar Ghosh, being the respondent No. 4 herein. 2. Mr. Saptangsu Basu, learned Senior Advocate appearing on behalf of the petitioner strenuously argues that the respondent No. 4 did not meet the eligibility criteria of providing a land as per specifications provided in the advertisement and brochure issued by the IOCL Mr. Basu's contentions are primarily in relation to two aspects - (a) firstly, that the portion of land that has been offered by the respondent No. 4 was less than the area of land that was required to be offered; and (b) that the land offered was partly "jal" (water) land, and therefore, the same was not suitable for the purposes of setting up of a petrol pump. 3. With regard to the first submission, Mr. Basu relied on the affidavit filed by the IOCL and indicated that with reference to the R.S. Dag No. 2731, three deeds have been provided by the Respondent No.4. The first deed is a sale deed for 2 decimals of land, the second deed is a sale deed for 3 decimals of land and the third deed is an exchange deed for 4 decimals of land. 4. He submitted that the third deed, being a deed of exchange cannot be added to the area of lands provided in the first two deeds as the third deed is exchange of the land provided in the first two deeds. 5. According to him, after subtracting the 4 decimals as provided in the exchange deed, the calculation of the total area would aggregate to 768 square metres, that is far less than the required 900 square metres as per the terms and conditions. 6. With regard to the second contention, he submitted that the three deeds clearly indicate that the land was a "jal" land and was not a 'bastu' land. He submitted that such a land to be used for the purposes of construction of a petrol pump would require to be converted, and therefore, such land cannot under any circumstances be "suitable" land. He relied on the Supreme Court decision in the case of Shri Parvez Qader Vs. He submitted that such a land to be used for the purposes of construction of a petrol pump would require to be converted, and therefore, such land cannot under any circumstances be "suitable" land. He relied on the Supreme Court decision in the case of Shri Parvez Qader Vs. Union of India, (1975) 4 SCC 318 to support his argument that the "suitability" is required to be seen with reference to the object of the enactment and the purpose sought to be achieved. He submitted that providing a land that was not a 'bastu' land would not even meet the objective criteria of 'suitability'. 7. Mr. P. Chakraborty, learned Counsel appearing on behalf of the Indian Oil Corporation Ltd. submitted that all norms and procedures were followed in this particular tender process and it is only after a proper land evaluation was carried out by two members of IOCL was the respondent No. 4's land declared to be "suitable". With regard to the area of land, he submitted that the three deeds that were submitted for R.S. Dag No. 2731 aggregated to 9 decimals of land and upon adding the land provided in R.S. Dag No. 2734, the total area of 24 decimals was sufficient as per the norms. With regard to the argument of the petitioner that the third deed of exchange cannot be taken into account, he submitted that the 4 decimals of land in the third deed was a separate piece and parcel of land and not the land indicated in the first two deeds. With regard to the second contention of the writ petitioner on "suitability", he submitted that classification of the land in the land revenue records is not considered as one of the eligibility criteria for evaluation of the offered land. He further submitted that the respondent Corporation under its own policy guidelines conducts "suitability" test of the offered land on the basis of parameters fixed in the guidelines. In cases where the land is not a 'bastu' land, evaluation of the land is done and if required, the applicant is directed to convert the said classification of land before the construction and commissioning of retail outlet. 8. He further submitted that the classification "jal" only indicates that the land is an agricultural land where crops are grown and is distinct from "pukur", that is pond and/or any water body. 8. He further submitted that the classification "jal" only indicates that the land is an agricultural land where crops are grown and is distinct from "pukur", that is pond and/or any water body. He submitted that the restriction on conversion of water bodies does not apply to "jal" land. 9. Mr. Soumya Majumdar appearing on behalf of the Respondent No.4 reiterates the submission made by Mr. Chakraborty. He further placed before this Court the three deeds that had been offered by his client and also indicated the parcha in the name of the brother of the client which clearly shows that his client had 0.09 acres in R.S. Dag No.2731 and 0.15 acres in R.S. Dag No.2734. He further submitted that the deed of exchange that had been submitted to the IOCL was relating to a piece and parcel of land that has been purchased by his client by a conveyance deed in the year 2006. Mr. Majumdar further relied on Caretel Infotech Ltd. vs. Hindustan Petroleum Corporation Ltd. & Ors. [(Civil Appeal No.3588 of 2019) arising out of SLP (C) No.46 of 2019] and placed reliance on paragraphs 36,38,39 and 42 of the said decision to indicate that the writ court under Article 226 of the Constitution of India does not scrutinize each and every tender/contract issued by a public corporation. He submitted that the Writ Court is not the appropriate forum to carry out a roving enquiry into the process that has been followed by the public corporation. Mr. Majumdar has also indicated that the original deed for the piece and parcel of the land purchased in 2006 was not submitted as the IOCL's terms and conditions did not require the respondent to submit all chain deeds, and therefore, the same was never done. 10. I have considered the arguments placed by the Counsel appearing on behalf of the parties and I have perused the materials placed on record. 11. At the very outset, I have to state with regard to jurisdiction of this Court that the writ court under Article 226 of the Constitution of India does not examine every decision/order as if the Court is sitting in appeal. 11. At the very outset, I have to state with regard to jurisdiction of this Court that the writ court under Article 226 of the Constitution of India does not examine every decision/order as if the Court is sitting in appeal. It is the mechanism and process that has been followed by the authorities/corporation that is looked into and if the same is not found to be perverse and/or arbitrary, there is normally no requirement to interfere in the said process. It is to be further kept in mind that in a writ proceeding challenging contracts given by a public corporation, the window for interference is minimal and the Writ Court could only interfere when it finds a palpable illegality having been committed by the corporation with reference to the statutes/rules/guidelines that are to be followed by the corporation. The recent decision of the Apex Court in Caretel Infotech (Supra) highlights the self imposed restrictions under Article 226 of the Constitution of India and the relevant paragraphs are delineated hereinbelow :- "36. We consider it appropriate to make certain observations in the context of the nature of dispute which is before us. Normally parties would be governed by their contracts and the tender terms, and really no writ would be maintainable under Article 226 of the Constitution of India. In view of Government and Public Sector Enterprises venturing into economic activities, this Court found it appropriate to build in certain checks and balances of fairness in procedure. It is this approach which has given rise to scrutiny of tenders in writ proceedings under Article 226 of the Constitution of India. It, however, appears that the window has been opened too wide as almost every small or big tender is now sought to be challenged in writ proceedings almost as a matter of routine. This in turn, affects the efficiency of commercial activities of the public sectors, which may be in competition with the private sector. This could hardly have been the objective in mind. An unnecessary, close scrutiny of minute details, contrary to the view of the tendering authority, makes awarding of contracts by Government and Public Sectors a cumbersome exercise, with long drawn out litigation at the threshold. The private sector is competing often in the same field. Promptness and efficiency levels in private contracts, thus, often tend to make the tenders of the public sector a non-competitive exercise. The private sector is competing often in the same field. Promptness and efficiency levels in private contracts, thus, often tend to make the tenders of the public sector a non-competitive exercise. This works to a great disadvantage to the Government and the Public Sector. 37. In Afcons Infrastructure Limited v. Nagpur Metro Rail Corporation Limited & Anr., this Court has expounded further on this aspect, while observing that the decision making process in accepting or rejecting the bid should not be interfered with. Interference is permissible only if the decision making process is arbitrary or irrational to an extent that no responsible authority, acting reasonably and in accordance with law, could have reached such a decision. It has been cautioned that Constitutional Courts are expected to exercise restraint in interfering with the administrative decision and ought not to substitute their view for that of the administrative authority. Mere disagreement with the decision making process would not suffice." 12. Coming to the facts in the present case, I have examined in great detail the deeds and parchas (land records) produced before me. It is clear from the same that the respondent No. 4 had provided to the Indian Oil Corporation 24 decimals of land that was more than the requirement under the terms and conditions. With regard to the fact that a portion of this land was classified in the land records as "jal", I am of the view that such a classification does not make the land unsuitable for the purpose. It is a known fact that land lying in the rural and panchayat areas would be used for cultivation and it is only when a person decides to carry out a commercial venture, does he apply for conversion of the said land. Unless the land is designated a pukur (water body), there is normally no impediment in such a conversion. The IOCL that grants contracts to 100 of dealers all across the country cannot expect the persons who applied for dealership to have only "bastu" land in their possession. That would make the entire process impractical. The contention of the IOCL is that they themselves assess and evaluate the land and if they find that the said land is such that could normally be converted, then such a land would fit within the criteria of 'suitable' land. I am of the view that this contention is acceptable and logical. That would make the entire process impractical. The contention of the IOCL is that they themselves assess and evaluate the land and if they find that the said land is such that could normally be converted, then such a land would fit within the criteria of 'suitable' land. I am of the view that this contention is acceptable and logical. 13. Furthermore, I am mindful of the fact that the writ petitioner has not been able to make out a case of perversity and/or mala fide action on the part of the IOCL. In my view, in the absence of the same, the petitioner is not entitled to a writ of mandamus in the facts and circumstances of the present case. 14. In the light of the reasons provided above, this writ petition is dismissed. 15. There shall be no order as to costs. 16. I would like to thank the learned Counsel appearing on behalf of the parties for the capable assistance provided to this Court. 17. Urgent photostat certified copy of this order, if applied for, be given to the parties upon compliance of all formalities.