ORDER: 1. With the consent of learned counsel appearing for the petitioner and the respondents the Writ Petition itself is taken up for final hearing. 2. The Writ Petition is filed for the following reliefs: “…to issue an appropriate writ or order or direction more particularly a writ in the nature of a Writ of Mandamus declaring the actions of Respondent No.2 Corporation (APSRTC) in issuing the letter bearing No.CM(Comm)/Oil Outlets/110(15)/2018-19, dated 10.08.2021, as being illegal, arbitrary, violative of the terms and conditions of the request for proposal as well as violative of Articles 14, 19 & 21 of the Constitution of India and consequently quash the same and direct respondent No.2 Corporation (APSRTC) to transfer the (4) Letters of Intent dated 26.11.2020 (Annexure P6) in favour of petitioner No.2 (RBML) and pass such other order or orders as this Hon’ble court may deem fit and proper in the circumstances of the case and in furtherance of justice.” 3. This Court has heard Sri L.Ravichander, learned senior counsel appearing for Sri Sai Sanjay Suraneni and Ms. Avanija Inuganti, learned counsels for the petitioner and Sri P. Durga Prasad, learned standing counsel for the respondents. PETITIONERS’ SUBMISSIONS: 4. Sri L.Ravichander, learned senior counsel submits that the 1st petitioner is India’s largest industrial group with a private refinery. It is the successful tenderer in a bid floated by the respondents for development of sites for installation of retail oil outlets. Four letters of intent were also issued on 26.11.2020 in favour of the 1st petitioner. However, by then the petitioner had transferred all its retail marketing business to the 2nd petitioner herein. Learned senior counsel submits that the permission of Government of India was obtained for this transfer of marketing authorization to the 2nd petitioner. This is evidenced by a letter dated 31.03.2020 issued by the Government of India (Ministry of Petroleum and Natural Gas). Learned senior counsel submits that the 1st and the 2nd petitioners have entered into a petroleum product supply agreement dated 09.07.2020 by which the 2nd petitioner has been given the exclusive rights to market the products manufactured by the 1st petitioner. It is also stated therein that the entire requirements of the product needed by the 2nd petitioner shall be supplied by the 1st petitioner. It is also stated therein that the entire requirements of the product needed by the 2nd petitioner shall be supplied by the 1st petitioner. Learned senior counsel, therefore, argues that as the entire business of retailing in the petroleum product was transferred to the 2nd petitioner, a request was made on behalf of the 1st petitioner to transfer the letters of intent from the 1st petitioner to the 2nd petitioner. It is the contention of the learned senior counsel that even the licenses issued to the petitioner for all its retail outlets have been transferred in the name of the 2nd petitioner, therefore, it is submitted that the letters of intent, which are issued by the respondents in favour of the 1st petitioner should be transferred to the 2nd petitioner. Learned senior counsel argues that the respondents have refused to transfer these letters of intent on the ground that the 2nd petitioner is not owning an oil refinery and would have been ineligible to submit a bid in this case. It is his contention that when there is a transfer of the entire retail marketing business to the 2nd petitioner and the said transfer has been approved by the Government of India itself the 2nd petitioner cannot refuse to transfer the letters of intent. It is his contention that the respondents have taken a hyper technical approach ignoring the purpose for the tender was floated and awarded to the 1st petitioner. He submits that ultimate objective of the tender will be fulfilled even if the letters of intent are transferred to the 2nd petitioner as the output of petroleum oil and other products of the 1st petitioner are transferred for the purpose of marketing to the 2nd petitioner. The learned senior counsel therefore argues that the actions of the respondents are contrary to law. To support his argument, he also relies upon the three judgments of the Hon’ble Supreme Court of India and the High Court of Andhra Pradesh, which are filed along with the rejoinder viz., the cases of – 1) New Horizon Limited & Another v Union of India & Others, (1995) 1 SCC 478 2) State of U.P. & Others v Remusagar Power Co., & Others, (1988) 4 SCC 59 3) Prasad Sushee Join Venture v The Singareni Collieries Company Ltd., & Others, 2015 OnLine Hyd 623 RESPONDENTS’ SUBMISSIONS: 5. In reply to this, Sri P. Durga Prasad, learned standing counsel for the respondents argues that the bid was submitted by the 1st petitioner. The 1st petitioner’s credentials were examined in terms of the request for proposal (RFP) and the 1st petitioner alone was found to be eligible and qualified to bid. It is also argued by the learned standing counsel it is an essential condition that the bidder should be an oil company owned by a public sector undertaking or a private sector having a refinery. It is submitted by the learned standing counsel that the “eligibility criteria” cannot be relaxed and so the letters of intent cannot be transferred in its name. He relies upon a Division Bench judgment of the Madras High Court in M/s Smart Chip Ltd., v The Secretary to Government, Transport Department, Chennai and six others, W.A.Nos.1976, 1618 & 1631 of 2013 (Madras High Court) to argue that the essential conditions of a bid cannot be overlooked. It is also submitted that the cases relied upon by the petitioner are cases pertaining to qualifications/experience in tenders before the contract is concluded. It is his contention that if a thing is contemplated to be done in a particular manner, it should be done in that manner alone. He argues that the facts of the cases cannot be overlooked and that once the condition in the bid is not fulfilled the transfer of the letters of intent from the successful bidder to a third party, who may be given the exclusive marketing right, is not permissible under law. Since the contract is concluded between the 1st petitioner and the respondents alone, he submits that the case law relied upon is clearly distinguishable and it does not relate to the present set of facts, wherein letters of intent is already issued to the 1st petitioner. He contends that this is not a case of valuation of a combined experience of a bidders in a consortium or a joint venture, but this is a case of transfer of a concluded contract in favour of the third party, who would not be eligible to bid at all. COURT: 6. After hearing both the learned counsel, in the opinion of this Court the following clauses/terms of the bid arise for consideration and for determination of the dispute. “BID SUMMARY: 4. COURT: 6. After hearing both the learned counsel, in the opinion of this Court the following clauses/terms of the bid arise for consideration and for determination of the dispute. “BID SUMMARY: 4. Evaluation of Tender: The Bids will be finalized based on the Quotation submitted through online i.e., through MSTC and conducting open auction among the eligible bidders, based on the highest Lease Rent offered by the Bidder for the Project. Separate bids have to be uploaded by the Bidders for each and every site. 14. Signing of Lease Agreement: After selection, a Letter of Intent (the "LOI") shall be issued, in duplicate by APSRTC to the Selected Bidder and the Selected Bidder shall, within 7 days of the receipt of the LOI, sign and return the duplicate copy of the LOI in acknowledgement thereof. In the event the duplicate copy of the LOI duly signed by the Selected Bidder is not received by the stipulated date, APSRTC may, unless it consents to extension of time for submission thereof, appropriate the Bid Security of such Bidder, and the next eligible Bidder may be considered. After acknowledgement of the LOI as aforesaid by the Selected Bidder, it shall execute the Lease Agreement within 30 days of obtaining NOC. The Selected Bidder shall not be entitled to seek any deviation in the Lease Agreement. GENERAL INFROMATION/INSTRUCTIONS: 4.4.1 General Eligibility: The Bidder shall be an Oil company owned by Public Sector undertaking or Private Sector company having Oil refinery. 4.4.2 Non-Compliance with RFP: APSRTC reserves the right to terminate a Bidder’s participation in the bidding process at any time should APSRTC consider that a bidder has, without the prior consent, failed to comply with the procedures and protocols prescribed in the RFP. AWARD OF PROJECT/SIGNING OF LEASE AGREEMENT: 8.2 Issue of LoI after Evaluation of the Bids and Approval of APSRTC: Upon completion of the Bid evaluation process, acceptance of the Bid an intention of award of the Project/Lease would be conveyed by APSRTC to the Preferred Bidder, who satisfies all other compliance requirements. The above Letter of Intent (LoI) would be communicated to the preferred Bidder by fax or email confirmed by a letter. 8.4 Signing of Lease Agreement 8.4.1 Within 30 (Thirty) days of obtaining NOC, the Preferred Bidder shall sign the Lease Agreement with APSRTC. The above Letter of Intent (LoI) would be communicated to the preferred Bidder by fax or email confirmed by a letter. 8.4 Signing of Lease Agreement 8.4.1 Within 30 (Thirty) days of obtaining NOC, the Preferred Bidder shall sign the Lease Agreement with APSRTC. Payment of 24 times Lease Rent of the first month as interest free, refundable Security Deposit shall be the precondition for the signing of the Lease Agreement. 8.4.2 If the Preferred Bidder fails to sign the Lease Agreement with APSRTC within the stipulated time, his Bid Security and all other payments made till that date shall be forfeited. In that event, APSRTC shall have the right to award the Project to the next Highest Bidder (H2) if H2 agrees to match the Price Bid of H1 or otherwise, as decided by APSRTC. SPECIAL INSTRUCTIONS: Article 9 (xxvii): Those who have submitted quotation are only eligible for participation in the auction.” (Emphasis supplied) 7. In addition, the terms of the lease agreement by which the proposed business is to be carried forward are also relevant in the opinion of this Court. This lease agreement is the substratum or the foundation for the business which was go to on for a period of 20 odd years. In the proposed lease agreement, the following clauses/recitals and definitions are important: “APSRTC invited competitive proposals from interested parties for the Project and pursuant to evaluation of the Proposals that were received, APSRTC accepted the Proposal submitted by ____________ for the Project Site and a Letter of Intent (LoI) bearing No.___________ dated_________ was issued to the Successful Bidder. Section 1.1 (j) Lessee' shall mean the selected Preferred Bidder who has been selected and nominated by the APSRTC to implement the Project on the terms and conditions stipulated in the Lease Agreement. “Proposal” or “Bid” means the documents in their entirety comprised in the proposal or bid submitted by Preferred Bidder (including financial proposal/bid) in response to the Request for Proposal, and accepted by the Lessor, signed for verification by the authorized representatives of the Parties: 8. A reading of these clauses/recitals/definitions in succession makes it very clear that respondents floated a bid for development of sites for installation of retail outlets by oil companies. A bidder is the person with whom the contract is to be entered into once he becomes a preferred bidder. A reading of these clauses/recitals/definitions in succession makes it very clear that respondents floated a bid for development of sites for installation of retail outlets by oil companies. A bidder is the person with whom the contract is to be entered into once he becomes a preferred bidder. A bidder is very clearly defined as Oil Company owned by a public sector undertaking or “private sector” company having oil refinery. This is an elementary or a necessary condition which in the opinion of this Court has to be fulfilled. The bidder, who submits a bid, becomes the “preferred bidder” if he is successful and fulfills all the criteria (Clause 8.2). The preferred bidder shall sign the lease agreement. The 1st petitioner definitely fulfills this criteria, because it has a refinery. This is in public knowledge and it cannot be denied by the respondent or anybody else. 9. The question is: in view of the transfer of the marketing rights to the 2nd petitioner, can the relief be granted? In the opinion of this Court the agreement can only be entered into by the respondents with the bidder. As noticed earlier, those who have submitted quotations are only entitled to participate in the auction [Article 9 (xxvii)]. The preferred bidder, as per Clause 8.2 should satisfy all the other “compliance requirements” if his bid is found to be in order. The definition of a lessee in the bid document makes it clear that the lessee should be the preferred bidder/project company that is Public Sector Unit oil company or any other company having a refinery selected. 10. The essential pre-qualification or a pre-condition for a private company to be a bidder in this case is that they should be having an oil refinery. Clause 12 of the invitation to bid clearly states this and so does Clause 4.4 of the instructions which clearly states that the bidder should be a private sector company having an oil refinery. The arguments of the learned senior counsel that in view of the exclusive marketing agreement the 2nd petitioner would fulfill all the terms and conditions of the bid and ensure smooth supply of products, at first blush appears to be correct. It is asserted emphatically by the learned senior counsel that the 1st and 2nd respondents would ensure the fulfilment of the conditions of the agreement. It is asserted emphatically by the learned senior counsel that the 1st and 2nd respondents would ensure the fulfilment of the conditions of the agreement. However, what is necessary to be seen is whether the same is permissible under the terms and conditions of this bid and as per the general law. The terms and conditions of this bid make it very clear that the respondents would be entering into an agreement with the bidder, who “meets” the eligibility criteria and then becomes the preferred bidder. It is this the preferred bidder alone who is entitled to enter into the agreement between the parties. As rightly pointed out by the learned standing counsel for the respondents, if the 2nd petitioner had independently filed its bid it would have been rejected at the threshold itself since admittedly they do not have an oil refinery. The law is clear that what cannot be done directly cannot also be done indirectly. It is also clear that when power is given to do a thing it must be done in that manner alone or not at all. This principle is extended to contractual bids/tenders also. In para 52 of Central Coalfileds Ltd., and another V SLL-SML (Joint Venture Consortium) and Others, (2016) 8 SCC 622 the Hon’ble Supreme Court of India held as follows: “52. There is a wholesome principle that the courts have been following for a very long time and which was articulated in Nazir Ahmad v Kind Emperor, AIR 1936 PC 253 (2) : 1936 SCC OnLine PC 41 namely: (SCC OnLine PC) ‘…..where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden’. There is no valid reason to give up this salutary principle or not to apply it mutatis mutandis to bid documents. This principle deserves to be applied in contractual disputes, particularly in commercial contracts or bids leading up to commercial contracts where there is stiff completion.” 10. Therefore, issuing a letter of intent in favour of the 2nd petitioner at the request of the 1st petitioner would be contrary to the terms and conditions of the bid. These are also essential conditions in the bid which cannot be relaxed under any circumstances. Therefore, issuing a letter of intent in favour of the 2nd petitioner at the request of the 1st petitioner would be contrary to the terms and conditions of the bid. These are also essential conditions in the bid which cannot be relaxed under any circumstances. The law that the essential conditions of bid cannot be relaxed is too well settled to be repeated here. Time and again the highest courts of the land have clearly held that the essential conditions of a bid cannot be relaxed. For the sake of good order a decision of the Hon’ble Supreme Court in Vidharbha Irrigation Development Corporation and Others v Anoj Kumar Agarwal and Others, (2020) 17 SCC 577 is referred to. If the essential term of a “bid” cannot be relaxed prior to the conclusion of the bid acceptance, the same principle would continue to operate even after the “bid” becomes an accepted offer/contract. By permitting the request made by the petitioner this Court would be granting approval of relaxation of an essential condition. In addition, the Hon’ble Supreme Court of India in Central Coal Fields case (5 supra) also held as follows on the issue of the decision making by an employer with regard to essential conditions: “47. The result of this discussion is that the issue of the acceptance or rejection of a bid or a bidder should be looked at not only from the point of view of the unsuccessful party but also from the point of view of the employer. As held in Ramana Dayaram Shetty [Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489 ] the terms of NIT cannot be ignored as being redundant or superfluous. They must be given a meaning and the necessary significance. As pointed out in Tata Cellular [Tata Cellular v. Union of India, (1994) 6 SCC 651 ] there must be judicial restraint in interfering with administrative action. Ordinarily, the soundness of the decision taken by the employer ought not to be questioned but the decision-making process can certainly be subject to judicial review. As pointed out in Tata Cellular [Tata Cellular v. Union of India, (1994) 6 SCC 651 ] there must be judicial restraint in interfering with administrative action. Ordinarily, the soundness of the decision taken by the employer ought not to be questioned but the decision-making process can certainly be subject to judicial review. The soundness of the decision may be questioned if it is irrational or mala fide or intended to favour someone or a decision “that no responsible authority acting reasonably and in accordance with relevant law could have reached” as held in Jagdish Mandal [Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517 ] followed in Michigan Rubber [Michigan Rubber (India) Ltd. v. State of Karnataka, (2012) 8 SCC 216 ]. 48. Therefore, whether a term of NIT is essential or not is a decision taken by the employer which should be respected. Even if the term is essential, the employer has the inherent authority to deviate from it provided the deviation is made applicable to all bidders and potential bidders as held in Ramana Dayaram Shetty [Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489 ]. However, if the term is held by the employer to be ancillary or subsidiary, even that decision should be respected. The lawfulness of that decision can be questioned on very limited grounds, as mentioned in the various decisions discussed above, but the soundness of the decision cannot be questioned, otherwise this Court would be taking over the function of the tender issuing authority, which it cannot. 49. Again, looked at from the point of view of the employer if the courts take over the decision-making function of the employer and make a distinction between essential and non-essential terms contrary to the intention of the employer and thereby rewrite the arrangement, it could lead to all sorts of problems including the one that we are grappling with. For example, the GTC that we are concerned with specifically states in Clause 15.2 that “Any bid not accompanied by an acceptable Bid Security/EMD shall be rejected by the employer as non-responsive”. Surely, CCL ex facie intended this term to be mandatory, yet the High Court held that the bank guarantee in a format not prescribed by it ought to be accepted since that requirement was a non-essential term of the GTC. Surely, CCL ex facie intended this term to be mandatory, yet the High Court held that the bank guarantee in a format not prescribed by it ought to be accepted since that requirement was a non-essential term of the GTC. From the point of view of CCL, the GTC has been impermissibly rewritten by the High Court.” 12. Lastly, the following dates, which are visible from the documents filed are also important. • e-tender was invited on 13.11.2018 by the respondents. • Petitioner offers were dated 27.12.2018 and 29.01.2019 for developing four retail outlets at Anaparthy, Kavali, Piler and Kurnool respectively. • Four letters of intent were issued on 26.11.2020 by the respondents to the 1st petitioner. 13. In the interregnum period, on 24.04.2020 the petitioner made a request to Government of India to transfer its marketing wing/organisation to the 2nd petitioner. The Ministry of Petroleum by its letter dated 31.03.2020 permitted the same and the application dated 24.02.2020 was approved. On 09.07.2020 an agreement was entered into between petitioner Nos.1 and 2 for the marketing of the various products manufactured by the 1st petitioner. Thus, it is clear that even before the date of issuance of the letters of intent, permissions were sought by the 1st petitioner to transfer its marketing division to the 2nd petitioner. It is not clear why this fact was not disclosed to the respondents. Almost eight months before the letters of intent were issued the Government of India had permitted the transfer of marketing arrangements between petitioners 1 and 2. Only after the letters of intent were issued on 26.11.2020, the 1st petitioner addressed a letter seeking the issuance of LOI in favour of the 2nd petitioner. In the opinion of this Court this conduct of the 1st petitioner disentitles from seeking an equitable relief of a Mandamus. No explanation is also forthcoming in the Writ Affidavit about this. 14. Lastly, the case law cited by the learned senior counsel for the petitioners, in the opinion of this court, are not directly applicable to the facts and circumstances of the case on hand. Both the Supreme Court judgments are leading judgments on the subject. In the case of New Horizon Ltd., (1 supra) the core issue was about the experience of the constituent of a joint venture. Both the Supreme Court judgments are leading judgments on the subject. In the case of New Horizon Ltd., (1 supra) the core issue was about the experience of the constituent of a joint venture. The question, therefore, was whether the rejection of a bid by the Tender Evaluation Committee of a bidder called NHL was correct or not. This was the case whether the contract was not yet concluded and a bid was rejected on the ground that the condition regarding experience as laid down in the tender notices was not fulfilled. The Hon’ble Supreme Court of India held that the experience of the joint venture member or the constituent of the joint venture can be construed to the experience of the bidder and for this purpose corporate deal was pierced. 15. In Renusagar Power Co., Case (2 supra) the question was about the levy of electrical charges. It is also noted that piercing of the corporate veil was necessary to decide the relationship between the Renusagar Power co., and Hindalco. Renusagar was said to be wholly owned subsidiary of Hindalco and it is completely controlled by Hindalco. Even the day to day affairs of Renusagar are controlled by Hindalco and it is also noticed by the Hon’ble Supreme Court of India that the State or the respondent’s board have also lifted the corporate veil and treated the Renusagar and Hindalco as one and the generation of power/electricity in Renusagar was also treated as own sources of generation of Hindalco. Therefore, it is held that Renusagar power plant must be treated as power plant of Hindalco. These facts are not similar to the present case which deals with a marketing agreement given to the 2nd petitioner by the 1st petitioner. 16. Similarly, in the judgment of learned single Judge of this Court in Prasad Sushee Joint Venture case (3 supra) also the questions that were decided can be seen from para 12 of the judgment which is as follows: “12. From the above rival contentions, the questions that fall for consideration are:- (1) Whether respondent Nos. 1 and 2 are justified in treating the Holding Company as the bidder, while considering the bid submitted by the 3rd respondent: and (2) Whether respondent Nos.1 and 2 are justified in taking into consideration the experience and financial capacity of the Holding Company, while assessing the bid of the 3rd respondent?” 17. 1 and 2 are justified in treating the Holding Company as the bidder, while considering the bid submitted by the 3rd respondent: and (2) Whether respondent Nos.1 and 2 are justified in taking into consideration the experience and financial capacity of the Holding Company, while assessing the bid of the 3rd respondent?” 17. Thus, it is clear that the facts in the present case are far different from the facts before the Hon’ble the Supreme Court of India or the learned single Judge of this Court. This is not a case of piercing the corporate veil to ascertain if the Joint venture partner has necessary expertise or the experience. The question involved here is whether the request of Petition No.1 to transfer the letter of intent to petitioner No.2 can be accepted or not? This Court holds that it is not permissible. This Court is also of the opinion that on the question of law once a contract is concluded, it cannot be transferred or assigned to the 3rd party without the consent of the respondent. It is also a matter of discretion. In the opinion of this Court the respondents rightly refused to transfer the letter of intent, since they felt that the letter of intent can only be issued to a preferred bidder, who fulfills all the eligibility criteria. Admittedly the 2nd petitioner, who is called as exclusive marketing licenses does not fulfill the eligibility criteria. 18. In the passing this Court also notices that the Petroleum supply agreement dated 09.07.2020 is filed as part of bid papers. Some pages and terms of this agreement are not reproduced and are redacted. The available clauses do not indicate that the entire production of petitioner No.1 will be given exclusively to petitioner No.2 for distribution. The Clause 9.1 relied upon by the learned senior counsel is to the following effect: “9.1 Exclusivity: during the Term and except as otherwise expressly provided for in this Agreement, the company shall have the obligation to purchase and take delivery of the Company’s entire requirements for Products for sales in the Republic of India and RIL shall have the obligation to sell and deliver up to a maximum of the Base Quantify subject to the terms of this Agreement.” 19. What is the base quantity is not clear from the document filed before this Court. This particular definition has been redacted. What is the base quantity is not clear from the document filed before this Court. This particular definition has been redacted. Apart from this, this court also notices that the application as made on 24.02.2020 by the 1st petitioner to transfer its marketing authorization to the 2nd petitioner for retail marketing along with the 1st petitioner’s retail business of 1400 retail outlets. The application specified that the existing 1400 retail outlets would be transferred from the 1st petitioner to the 2nd petitioner. About 474 retail outlets were proposed to be commenced in 2021 along with other units. The Government of India accorded permission to transfer these 1400 units and also clarified that prior permission from the Government should be taken beyond the proposed 447 new retail outlets also. Whether this would apply to the RFP floated by the respondents is also a moot point, but it is not an issue before this Court. These clauses are being touched upon without any final opinion being expressed only for answering the limited point about the exclusive rights said to be given to the 2nd petitioner. 20. Even otherwise, in the preceding paragraphs the facts, this Court has already held that the 2nd petitioner is not an eligible bidder. Therefore, it would not be entitled to get letter of intent in their name. The decision and the decision making process are in order in this case. The decision is not arbitrary; mala fide or irrational. 21. For all the above mentioned reasons, this Court holds that the petitioners have not made out a case for interference or for grant of an order as prayed for. Accordingly, the Writ petition is dismissed. There shall be no order as to costs. 22. Consequently, the Miscellaneous Applications pending, if any, shall also stand dismissed.