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2022 DIGILAW 317 (JK)

Ravi Kiran Sharma v. Union of India

2022-07-06

RAJNESH OSWAL

body2022
Judgment : The petitioner and respondent No. 5, pursuant to the advertisement dated 25.11.2018 issued by the respondent No. 2, applied for allotment of MS/HSD retail outlet dealership at location within one kilometre on either side of Taryara on Jammu-Pathankot National Highway-44 at District Kathua. The candidature of the petitioner was rejected vide communication dated 11.07.2019 and the letter of intent (LOI) dated 20.11.2020 was issued in favour of respondent No. 5 by respondent No. 3. 2. The petitioner through the medium of present writ petition filed on 01.02.2022 has prayed for quashing of communication dated 11.07.2019 and LOI dated 20.11.2020 and has also made prayer for commanding the respondents 2 and 3 to allot MS/HSD retail outlet for abovementioned location in favour of the petitioner and further restraining the respondent Nos. 2 & 3 from permitting the respondent No. 5 to proceed ahead with the establishment of MS/HSD retail outlet pursuant to the impugned LOI. 3. It is stated that as per clause-4 of the eligibility criteria, the applicants are classified into three groups based on the land offered or land not offered by them. Group-I constitutes applicants having a suitable piece of land in the advertised locations/area either by way of ownership/long term lease for 19 years and 11 months or as advertised by OMC. Group-II constitutes of applicants having a firm offer for a suitable piece of land for purchase or long term lease for a period of minimum 19 years 11 months or as advertised by OMC. Group-III constitutes of applicants, who have not offered land in application. Applicants under Group-III can be considered/processed only if no eligible candidate is found or no applicant gets selected under Group-I or II. The petitioner claiming himself to be eligible submitted his application on the web portal of respondent Nos. 2 and 3. The petitioner offered a land measuring 4 kanals 3 marlas comprising khasra No. 177/57 situated at village Taryara on the left side of Jammu-Pathankot NH-44, owned by the parents of the petitioner. The site plan has also been placed on record. 4. The respondent No. 3 after receipt of application forms, opened the bids on 06.02.2019 at the office of Deputy Commissioner, Jammu. The petitioner had submitted his bid at Rs. 32 lacs and the petitioner was declared as selected vide letter dated 07.02.2019. The site plan has also been placed on record. 4. The respondent No. 3 after receipt of application forms, opened the bids on 06.02.2019 at the office of Deputy Commissioner, Jammu. The petitioner had submitted his bid at Rs. 32 lacs and the petitioner was declared as selected vide letter dated 07.02.2019. However, the award of dealership was subject to compliance of terms and conditions of respondent No. 2. In due deference to email dated 07.02.2019, the petitioner deposited a sum of Rs. 50,000/- as initial security deposit and also deposited the requisite documents. The petitioner was also informed that Land Evaluation Committee would visit the site on 20.05.2019. Site visit was conducted and thereafter vide communication dated 11.07.2019, the petitioner was informed that site offered by the petitioner was not meeting the required norms and his candidature would be considered for selection along with Group-III applicants as per the guidelines. Later on, the petitioner came to know that the LOI dated 20.11.2020 for the location mentioned above has been issued in favour of respondent No. 5 notwithstanding the fact that land of respondent No. 5 too does not conform to the criteria. 5. The petitioner has impugned communication dated 11.07.2019 and LOI dated 20.11.2020 on the following grounds:— (a) That the impugned letter dated 11.07.2019 is arbitrary and illegal as no reason has been assigned for rejection of candidature of petitioner and further the impugned letter has been issued with ulterior motive as the respondent No. 3 intended to award the retail outlet dealership in favour of respondent No. 5. (b) That the land offered by the petitioner is better located as compared to the land offered by respondent No. 5. The land offered by the respondent No. 5 does not conform to the guidelines issued by the Government of India, Ministry of Road, Transport and Highways (MoRTH), New Delhi. It is also stated that as per measurement carried out by the petitioner, the land offered by the respondent No. 5 is in fact 100-150 meters away from intersection, whereas the land offered by the petitioner is 550 meters away. Further the land offered by the petitioner is 100 meters from intersection with rural roads whereas the land offered by the respondent No. 5 is just 50-100 meters. Further the land offered by the petitioner is 100 meters from intersection with rural roads whereas the land offered by the respondent No. 5 is just 50-100 meters. (c) That the impugned communication and LOI are required to be quashed as the same are aimed to cause loss to Respondent No. 3 because the petitioner had made the bid at Rs. 32 lacs, whereas the respondent No. 5 made bid at Rs.31 lacs. (d) That the LOI has been issued in contravention of the directions contained in the guidelines issued by the Central Pollution Control Board which have been issued pursuant to the directions issued by the NGT whereas setting up new retail outlets within a radial distance of 50 meters (from fill point disbursing units/vent whichever is nearest) from the Schools is prohibited. The land offered by the respondent No. 5 is less than 50 meters from the school. 6. The respondent Nos. 2 to 4 in their objections besides raising preliminary objections stated that as per advertisement, the land was required to have front of 35 meters and depth of 45 meters. The affidavits sworn in by the petitioner in support of his application were found to be false, as LEC upon physical measurement, in presence of the petitioner found the land offered by the petitioner to be 35 meters in depth as against the required depth of 45 meters. As such, his candidature was rejected. It is stated that the selection of site is based on revised guidelines/norms dated 26.06.2020 for grant of permission for constitution of access to fuel stations, wayside amenities etc. The allegation of proximity of the school within 50 meters is baseless. 7. The respondent No. 5 in his objections has stated that the respondent No. 5 has obtained all the NOCs from different authorities before starting the construction of retail outlet allocated to him. He has already paid Rs. 31 lacs as bid amount and Rs. 5 lacs as security as well. The petitioner remained silent for more than 2 years and filed the present petition at a belated stage when the respondent No. 5 has complied with the whole exercise. The respondent No. 5 has changed his position during this period and even the lease deed has also been executed with Oil Company. 5 lacs as security as well. The petitioner remained silent for more than 2 years and filed the present petition at a belated stage when the respondent No. 5 has complied with the whole exercise. The respondent No. 5 has changed his position during this period and even the lease deed has also been executed with Oil Company. It is also stated that the candidature of the petitioner has been rightly rejected by the respondent No. 3. Further, the respondent No. 5 has denied the allegations levelled by the petitioner. 8. The petitioner in response to the objections filed by the respondents 2 to 5 filed supplementary affidavit and stated that the land offered by the petitioner as shown in site plan is 269 ft (82 meters) on front as against requirement of 35 meters and depth at one side as 176 feet (53.65 meters) as against requirement of 45 meters. The petitioner further by placing reliance on clause 14(H) of the Brochure stated that the land offered by the petitioner has sufficient depth perpendicular to the frontage at least at one place, as against the advertised depth. The petitioner also stated that the LEC while conducting spot verification did not find any fault with the land offered by the petitioner. The petitioner prayed that the respondents be directed to place on record the LEC report. It is also stated that the land offered by the respondent No.5 even does not conform to the MoRTH Guidelines 2020 as there are following deficiencies:— a. There is a median-cut at a distance of 200 meters towards Jammu from the offered land of the respondent No.5 where as it should have been 300 meters as per clause 2.2 of MoRTH Guidelines dated 26.06.2020. b. There is village road intersection in between IOC Fuel station and the site offered by the respondent No.5 which is less than 100 meters. c. There is an IOC fuel station located on the same side where the land of the respondent No.5 is located at a distance of 700 meters, whereas as per clause 2.2 (6) , there should be distance of 1000 meters. d. That as per clause 2.2 (6) if distance between two fuel stations is less than the prescribed distance then there should be a service lane which has no access directly to the National Highway. 9. d. That as per clause 2.2 (6) if distance between two fuel stations is less than the prescribed distance then there should be a service lane which has no access directly to the National Highway. 9. It is also stated that report of revenue department dated 28.02.2022 reveals that the land offered by the respondent No. 5 is just 30 meters away from School namely Kartar Public School. 10. The respondent No. 3 has filed the affidavit in response to supplementary affidavit filed by the petitioner and placed on record certain documents including LEC report along with sketch. It is stated that the attached site plan annexed as page No. 53 shows that the depth of 45 meters is not perpendicular to the frontage at least at one place. The LEC examined the land offered by the petitioner in presence of petitioner and the same did not meet the dimensions as prescribed in the advertisement. It is also stated that the brochure itself provided grievance redressal system under clause 18 whereunder complaint could be made accompanied by fee of Rs. 5000/- so that investigation could be carried out after 30 days of draw of lots/bidding process. It further provides that in case of established complaint, fee can be refunded. The petitioner without availing the said remedy has filed the present petition after nearly three years. Reference is also made to MoRTH Guidelines and further that the report of Patwari is not authentic. 11. After the judgement was reserved by this Court, the petitioner had filed an application for summoning of record rejecting the case of respondent No. 5 and in the said application it was stated that the petitioner has got the knowledge now that the case of private respondent No. 5 has been rejected on the ground that the same is in violation of the policy. It was also stated that the said decision of the rejection of the case of the private respondent is lying in the records of the official respondents but the petitioner has been denied the copy of the same. Simultaneously, in the said application, certain issues those were already argued were also raised. 12. It was also stated that the said decision of the rejection of the case of the private respondent is lying in the records of the official respondents but the petitioner has been denied the copy of the same. Simultaneously, in the said application, certain issues those were already argued were also raised. 12. This Court on the same day, when the said application was listed, directed the respondent Nos 2 to 4 to produce the record of the retail outlet allotted to the respondent No. 5 and the same was produced before this Court on the same day i.e 03.06.2022. 13. Mr. Sunil Sethi, learned senior counsel for the petitioner vehemently argued that the candidature of the petitioner has been wrongly rejected and as per the revised MoRTH guidelines the land of the petitioner meets the minimum requirement of 35 meters x 35 meters. He further argued that the allotment of the outlet has been made in utter disregard of the guidelines of MoRTH and that on spot, there is no service lane as also the distance from the median cut is less than prescribed by MoRTH guidelines of 2020. 14. Per Contra, Mr. R P Sharma, learned Counsel for the respondent Nos. 2 to 4 submitted that the land offered by the petitioner was not in accordance with the norms laid down in the advertisement and further LEC conducted the physical verification of the land in presence of the petitioner and he signed the said report. He further argued that LOI has been issued in favour of the respondent NO.5 in accordance with the guidelines issued by MoRTH and NOC has also been issued by National Highways Authority of India. He also submitted the site plan duly approved by the NHAI along with access permission for proposed retail outlet. He further argued that the norm of distance from median cut is not applicable in the instant case. 15. Mr. M.K Bhardawaj, learned senior counsel appearing for the respondent No.5 argued that the writ petition has been filed after 2 ½ years of the rejection of the application of the petitioner and between this period the respondent No.5 has altered his position and has made huge expenditure for purpose of establishment of Fuel station. 16. 15. Mr. M.K Bhardawaj, learned senior counsel appearing for the respondent No.5 argued that the writ petition has been filed after 2 ½ years of the rejection of the application of the petitioner and between this period the respondent No.5 has altered his position and has made huge expenditure for purpose of establishment of Fuel station. 16. Before appreciating the rival contentions of the parties, it would be appropriate to take note of the judgement of Hon’ble Apex court in Silppi Constructions Contractors v. Union of India, (2020) 16 SCC 489 , the relevant para is reproduced as under:— 19. This Court being the guardian of fundamental rights is duty-bound to interfere when there is arbitrariness, irrationality, mala fides and bias. However, this Court in all the aforesaid decisions has cautioned time and again that courts should exercise a lot of restraint while exercising their powers of judicial review in contractual or commercial matters. This Court is normally loathe to interfere in contractual matters unless a clear-cut case of arbitrariness or mala fides or bias or irrationality is made out. One must remember that today many public sector undertakings compete with the private industry. The contracts entered into between private parties are not subject to scrutiny under writ jurisdiction. No doubt, the bodies which are State within the meaning of Article 12 of the Constitution are bound to act fairly and are amenable to the writ jurisdiction of superior courts but this discretionary power must be exercised with a great deal of restraint and caution. The courts must realise their limitations and the havoc which needless interference in commercial matters can cause. In contracts involving technical issues the courts should be even more reluctant because most of us in Judges’ robes do not have the necessary expertise to adjudicate upon technical issues beyond our domain. As laid down in the judgments cited above the courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder. In fact, the courts must give “fair play in the joints” to the government and public sector undertakings in matters of contract. Courts must also not interfere where such interference will cause unnecessary loss to the public exchequer. 17. Now this Court would examine as to whether the petitioner has been wrongly ousted from the process of allotment of retail outlet. Courts must also not interfere where such interference will cause unnecessary loss to the public exchequer. 17. Now this Court would examine as to whether the petitioner has been wrongly ousted from the process of allotment of retail outlet. The perusal of item No. 50 of advertisement notice would reveal that for the location in question, the offered land should have minimum front of 35 feet and depth as 45 feet. The petitioner’s contention is that the land offered by the petitioner has 82 meters front and depth at one side is 53.65 meters. The perusal of the physical examination report dated 09.07.2019 prepared by LEC reveals that the front of land offered by the petitioners is 45 feet and depth is 35 feet. The said report is duly signed by the petitioner. The petitioner has nowhere disputed the said report duly signed by him. The land offered by the petitioner in application form did not correspond to the existing portion on spot and once the land offered by the petitioner was not in consonance with the requirements as mentioned in the advertisement, the respondent No. 3 has rightly rejected the candidature of the petitioner. More so, there is no force in the contention of the petitioner that even if the new guidelines of MORTH of 2020 are to be applied, then also the land of the petitioner is in accordance with the guidelines as the clause 4.0 of the guidelines of MORTH of 2020 provides 35 meters as front as well as depth for the fuel station. The perusal of guidelines reveal that the guidelines provide the minimum size of plot in rural area for a fuel station. It is not that OMC’s cannot demand area more than the minimum specifications laid down in the guidelines. Also the advertisement prescribed the dimensions of the land as 35 meters x 45 meters. So the petitioner has no right for consideration on the basis of minimum size as prescribed by the MORTH guidelines of 2020. Therefore, this Court is of considered view that there is no illegality or arbitrariness on the part of respondent Nos. 2 and 3 in rejecting the candidature of the petitioner for allotment of retail outlet/fuel station. 18. So the petitioner has no right for consideration on the basis of minimum size as prescribed by the MORTH guidelines of 2020. Therefore, this Court is of considered view that there is no illegality or arbitrariness on the part of respondent Nos. 2 and 3 in rejecting the candidature of the petitioner for allotment of retail outlet/fuel station. 18. More so, the perusal of the clause 18 of the Brochure provides for Grievance Redressal Mechanism that provides that the complaint can be entertained against the selections including the eligibility if accompanied by fee of Rs. 5,000/-. If the complaint is received after 30 days of declaration of result, the same shall not be entertained. The petitioner could have resorted to the grievance redressal mechanism but instead of resorting to same, the petitioner filed the writ petition nearly after three years of selection raising disputed question of facts. On this account as well, the grievance of the petitioner cannot be considered. 19. Now this Court would consider the eligibility of respondent No. 5 for allotment of retail outlet. The petitioner has raised the dispute with regard to the violation of the Central Pollution Control Board Guidelines, as also the guidelines of 2020 issued by the MoRTH. The perusal of the site plan placed on record by the respondents reveals that there is vacant plot in between the Kartar Public School and land offered by the respondent No. 5. The guidelines issued by Central Pollution Control Board i.e. the clause “H” of Annexure-XI to the writ petition provides the siting criteria of retail outlet and as per the said annexure, new retail outlets shall not be located within the radial distance of 50 meters from fill plant/dispensary unit/vent pipe whichever is nearer. In case of constraints in providing 50 meters distance, the retail outlet shall implement additional safety measures as prescribed by the Petroleum and Explosive Safety Organization but in no case, the distance has to be less than 30 meters. These fuel stations can be installed beyond 30 meters from school provided additional safety measures as prescribed by PESO are resorted to. So far as the instance case is concerned, the distance between the dispensing unit and school is 56.68 meters well beyond the minimum limit. These fuel stations can be installed beyond 30 meters from school provided additional safety measures as prescribed by PESO are resorted to. So far as the instance case is concerned, the distance between the dispensing unit and school is 56.68 meters well beyond the minimum limit. The distance of 100 feet/30 meters as mentioned in the report of Patwari is distance between boundary wall of land of respondent No. 5 and Kartar Public School and as such is of no help to the petitioner as distance required is to be considered from fill point/dispensing unit/vent pipe. Therefore, this contention of petitioner is rejected. 20. The other contentions of the petitioner is that there is median cut distance of 270 meters from the land offered by the respondent No. 5, which should have been 300 meters as per 2.2 MoRTH Guidelines and further that there is village road intersection between IOC fuel station and site offered by the respondent No. 5 which is less than 300 meters. In order to appreciate this contention, it is apt to take note of guideline Nos. 2.1 and 11.0 (ii) of MoRTH and the same is reproduced as under:— “2.1 Norms on existing Service Road/Slip Road Irrespective of the terrain, no norm shall be applicable if the retail outlet is proposed on the existing service roads/slip Road. However, permission for retail outlet proposed on the existing service roads/slip roads needs to be obtained from Highway Administration to regulate other requirements such as drainage facilities, plot size, drinking water, toilet facilities, signs, markings etc. However, no access permission shall be granted for establishment of a retail outlet on the entry/exit ramp of service/slip road. 11.0 Responsibilities of oil companies/owners (i) ....... (ii) After obtaining provisional permission for access, oil companies/owners shall be responsible for the construction and maintenance of deceleration/acceleration lanes, service roads, channelisers, drainage arrangement, drinking water and toilet facilities, signs and markings in accordance with the approved layout and specifications conforming to these norms, at his own cost.....” 21. In view of the guideline No. 2.1, once the proposed retail outlet is on the existing service road then the other norms shall not be applicable. So far as instant case is concerned, the HPCL has been permitted to construct/extend the service road having 7.0 m width. In view of the guideline No. 2.1, once the proposed retail outlet is on the existing service road then the other norms shall not be applicable. So far as instant case is concerned, the HPCL has been permitted to construct/extend the service road having 7.0 m width. It needs to be noted that NHAI, which is the competent authority to grant permission for establishment of a retail outlet on the National highways, has already granted the provisional permission to the respondents. The site plan has been approved by NHAI and the provisional access permission dated 19/03/2021 has been issued in favour of respondent Nos. 2 to 4. The petitioner has not challenged the provisional access permission. This Court while exercising powers under Article 226 of the Constitution of India cannot sit as appellate court over the decision of NHAI more particularly when the same has not been challenged. NHAI is statutory authority and it is the duty of NHAI to see that the guidelines are followed and this Court is not supposed to perform the role of NHAI. 22. The last contention of the petitioner is that there is IOC fuel station located on the same side at a distance of 700 meters, whereas as per clause 2.2(6), there should be distance of 1000 meters. This condition also provides that the said restriction shall not apply in case access/egress for all such fuel stations are provided through common service road of 7.0 m width and not directly to NH. As already observed above, once HPCL has been permitted to extend/construct the existing service road of 7.0 m width, the restriction shall not be applicable. The provisional access permission dated 19/03/2021 itself provides that the HPCL shall not energise fuel station without getting final access permission from NHAI. Thus, in the event of any violation of provisional access permission, the NHAI is well within its right to refuse the final access permission. 23. This Court has perused the record produced by the respondent Nos. 2 to 4 and this Court finds that there is no truth in the assertion of the petitioner that the case of the respondent No. 5 for allotment of retail outlet was rejected by respondent Nos. 2 to 4. 24. Viewed thus, the writ petition is found to be misconceived and as such, the same is dismissed. 25. 2 to 4 and this Court finds that there is no truth in the assertion of the petitioner that the case of the respondent No. 5 for allotment of retail outlet was rejected by respondent Nos. 2 to 4. 24. Viewed thus, the writ petition is found to be misconceived and as such, the same is dismissed. 25. Original record be handed over to the learned counsel for respondent Nos. 2 to 4.