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Telangana High Court · body

2022 DIGILAW 639 (TS)

N. Kishore Kumar v. Indian Oil Corporation Limited

2022-10-11

K.LAKSHMAN

body2022
ORDER : Heard Sri Vedula Venkata Ramana, learned Senior Counsel representing Sri. D.B.Chaithanya, learned counsel for the petitioner and Sri P. Venu Gopal, learned Senior Counsel representing Sri B.Mayur Reddy, learned counsel for respondents. 2. This Writ Petition is filed to declare the action of the respondent corporation contained in the letter of 2nd respondent in Ref. No.SDO/R/Chevella/737 dated 29.09.2021 in not issuing LOI to the petitioner and deciding to issue a fresh notification/advertisement for selection of dealers as regards the location “5KM from Chevella crossroads on NH163 towards Moinabad, LHS – Ranga Reddy District” and for consequential direction to the respondents to issue letter of intent in favour of the petitioner pursuant to the notification dated 14.12.2018. 3. 2nd respondent had issued a tender notification dated 14.12.2018 for selection of dealers for various locations in Telangana State including the subject location i.e. “5KM from Chevella cross road on SH4 towards Moinabad, Vikarabad District (Sl.No.737) under OBC category).” The petitioner herein had participated in the said notification by way of submitting bid. Since his bid was accepted in respect of the subject location, he was provisionally selected. The said fact was informed to the petitioner by 2nd respondent vide letter dated 06.07.2019. Land evaluation was completed by the respondent corporation on 14.09.2020. Verification of credentials of the petitioner was also completed on 01.10.2020. Despite completion of the aforesaid formalities, the respondents have not issued a letter of intent in favour of petitioner herein. Having waited for almost one year, he has submitted a representation dated 28.06.2021 to the respondents with a request to issue LOI in his favour. Despite receiving and acknowledging the said representation, respondents did not act upon the same. 4. Therefore, he had filed Writ Petition No.18044 of 2021 seeking a direction to the respondents to consider the said representation dated 28.06.2021 and issue LOI in his favour. This Court, Vide order dated 04.08.2021, disposed of the said Writ Petition directing the respondents to consider the said representation and pass appropriate order in accordance with law within a period of eight (8) weeks from the date of receipt of a copy of this order. 5. In compliance of the said order, 2nd respondent vide proceedings dated 29.09.2021, informed the petitioner that it is in the process of cancelling the present location and a fresh notification/advertisement with correct location will be issued in due course. 5. In compliance of the said order, 2nd respondent vide proceedings dated 29.09.2021, informed the petitioner that it is in the process of cancelling the present location and a fresh notification/advertisement with correct location will be issued in due course. Challenging the said order, the petitioner herein had filed the present Writ Petition. 6. Sri Vedula Venkata Ramana, learned counsel appearing for the petitioner would submit that there is no wrong location advertised by the respondents and it is the only one location factually. Corporation cannot correct the location. Having completed land evaluation on 14.09.2020 and credential verification, the respondent cannot now say that they are in the process of cancelling the location on the ground that there was ambiguity in the notification with regard to location. The said action of the respondents is arbitrary and illegal and also without proper reasons and it is hit by Article 14 of Constitution of India and also doctrine of legitimate expectation. With the said contentions, learned Senior Counsel sought to set aside the said proceedings dated 29.09.2021 and sought a direction to respondents to issue LOI in favour of the petitioner. 7. Sri P.Venu Gopal, learned Senior Counsel representing Sri B. Mayur Reddy, learned counsel appearing for the respondents would submit that the respondents have issued the subject advertisement on 14.12.2018 notifying 1448 locations across the State of Telangana separated by district. In the said advertisement, the respondents have found that the locations sketch for retail outlet as well as the name of district in which the said location sketch should found was wrongly advertised. In view of the said two inadvertent errors that have crept in, there is ambiguity in the notification/advertisement pertaining to the advertised locations. Due to such an ambiguity in the advertisement, many other prospective/interested candidates could not apply. Hence, IOCL is in the process of cancellation of the present locations and issued a fresh notification with regard to correct locations. Therefore, it is only an error crept in the advertisement dated 14.12.2018 and there is no arbitrariness. 8. He would further submit that, as per the dealer selection guidelines, the company reserves the right to cancel or withdraw the amendment of the said advertisement or extent the due date without assigning any reason. Therefore, there is no irregularity or illegality in correcting the advertisement and in issuing the impugned proceedings. 8. He would further submit that, as per the dealer selection guidelines, the company reserves the right to cancel or withdraw the amendment of the said advertisement or extent the due date without assigning any reason. Therefore, there is no irregularity or illegality in correcting the advertisement and in issuing the impugned proceedings. The petitioner is provisionally selected and he is not having any vested right to challenge the same. The petitioner can participate in the fresh tender notification to be issued. There is no legitimate expectation in favour of the petitioner and the said right is in-coherent but not crystallized. Therefore, the petitioner herein can’t claim any right. He has also placed reliance on the judgment of Division Bench in Writ Appeal No.1042 of 2015 dated 19.01.2017 and also in Supreme Court in Shimnit Utsch India Private Limited and another vs West Bengal Transport Infrastructure Development Corporation Limited and others reported in (2010) 6 Supreme Court Cases 303. 9. The aforesaid facts would reveal that the respondents have issued the subject advertisement for selection of dealers in respect of 1,448 locations across the state of Telangana including the subject location i.e. “5KM from Chevella crossroad on SH4 towards Moinabad, Vikarabad District (S1.No.737) under OBC category”. The petitioner herein had submitted his tender. 10. According to the respondents, vide proceedings dated 06.07.2019, they have informed the petitioner that he was provisionally selected in respect of the subject location. It is also not in dispute that respondents have completed land evaluation on 14.10.2020. The Members of the committee have evaluated the land offered by the petitioner in Sy.No.85 of Kesaram Village, Chevella Mandal. Verification credentials have also completed on 01.10.2020. Thereafter, according to the respondents, during the process of issuing letter of intent, it was found that location sketch for the retail outlet as well as the name of the district in which the said locations sketch should file was wrongly advertised. The same is as follows: a) “Wrong Location: 5 KM from Chevella crossroad on SH4 towards Moinabad, LHS – Vikarabad District. b) Correct Location: 5 KM from Chevella crossroad on NH163 towards Moinabad LHS – Ranga Reddy district.” 11. Thus, there were two mistakes that were crept in the advertisement i.e. instead of NH163, they have mentioned as SH4 and instead of Rangareddy District, they have mentioned as Vikarabad District. 12. b) Correct Location: 5 KM from Chevella crossroad on NH163 towards Moinabad LHS – Ranga Reddy district.” 11. Thus, there were two mistakes that were crept in the advertisement i.e. instead of NH163, they have mentioned as SH4 and instead of Rangareddy District, they have mentioned as Vikarabad District. 12. According to the respondents, it is important to notify the district correctly. In the present case, they have notified the district wrongly. Locations for establishment of retail outlet are based on the commercial/minimum value consideration. In case of national Highway site there will be higher investment due to construction of R.O as per the NHAI/MoRTH guidelines and facilities in State Highway and National Highway based on outlets are different. 13. Moreover, land requirement is higher in case of National Highway (Area: 35m into 45m) based outlet when compared with State Highway (Area: 35m to 35m). The same makes the investment on higher side when compared with State Highway. The company extracts justifiable volume of sales and maximum number of bids to release more bid amount. The land facilities required are different in State Highway and National Highway sites, as the customer profile is different, economic feasibility for sites of State Highway minimum value is 100KLPM, whereas for sites on National Highway 150 KLPM where sites advertisement on State highway requires lower investment. Thus, in the advertisement, instead of Ranga Reddy District, it is mentioned as Vikarabad District and instead of National Highway, it was mentioned as State Highway. The said mistakes/errors were noticed by the respondents in the process of issuing of LOI. Due to the said ambiguity in the advertisement, many other prospective/interested candidates could not apply. Therefore, the respondents have decided to cancel the tender and to issue fresh tender by mentioning proper locations. 14. It is relevant to note that as per the dealer selection guidelines, of General Conditions pertaining to advertisement more particularly clause XIV of the respondent corporation the company reserves the right to cancel/withdraw/amend the advertisement or extend the due date at its sale discretion without assigning any reason. The respondents invoked the said power and decided to cancel the subject advertisement in view of the aforesaid two errors. 15. According to the petitioner, there is no error in notifying the location and it is only one location and even then, respondents have decided to cancel the advertisement arbitrarily. 16. The respondents invoked the said power and decided to cancel the subject advertisement in view of the aforesaid two errors. 15. According to the petitioner, there is no error in notifying the location and it is only one location and even then, respondents have decided to cancel the advertisement arbitrarily. 16. According to the respondents, there were two mistakes in the advertisement and therefore, they have decided to cancel the same and there is no arbitrariness in the said decision taken by the respondents. 17. In the grounds of Writ Petition, the petitioner contended that SH4 (State Highway) Connecting Chevella crossroad towards Moinabad is now re-designated as NH 163. In other words SH4 and NH163 are one and the same. The applicants would not search for the name of district i.e. whether it is Vikarabad District or Ranga Reddy District. The two connecting points i.e. Chevella cross roads towards Moinabad remained the same in the alleged wrong location and in the alleged correct location. Whether it is Vikarabad District or Ranga Reddy District, it is inconsequential as to whether the Vikarabad District or Ranga Reddy District. 18. Thus, it is admitted by the petitioner that the subject location is on NH163 but not SH4. The district is also Ranga Reddy District but not Vikarabad District. Even according to the petitioner, there were two mistakes that were mentioned in the subject advertisement. Therefore, on noticing the same, respondents have decided to cancel the said advertisement and to issue fresh advertisement. 19. In view of the above, the aforesaid two mistakes are major mistakes. As rightly contended by the respondents parameters/guidelines are altogether different in respect of location of State Highway and National Highway. The district name also definitely has its own impact. Therefore, there is no arbitrariness in the decision of the respondents to cancel the subject advertisement and to issue fresh advertisement. 20. As rightly contended by Sri P.Venu Gopal, learned Senior Counsel, it was only a provisional selection that was issued to the petitioner vide letter dated 06.07.2019. Therefore, there won’t be any legitimate expectation and there is no right incoherent and the right of the petitioner is not crystallized. 21. 20. As rightly contended by Sri P.Venu Gopal, learned Senior Counsel, it was only a provisional selection that was issued to the petitioner vide letter dated 06.07.2019. Therefore, there won’t be any legitimate expectation and there is no right incoherent and the right of the petitioner is not crystallized. 21. A Division Bench of this Court vide order dated 19.01.2017 in W.A.No.1042 of 2014 held that mere submission of bids does not by itself confer any right on a bidder to claim that he should be selected for establishing the retail outlet; and, as long as the decision of the corporation, to cancel the entire notification is not so palpably arbitrary or unreasonable as to fall foul of Article 14 of the Constitution of India, the Court would not be justified in interference. In exercise of its powers of judicial review under Article 226 of the constitution of India, this Court would neither sit in appeal over the judgment of the corporation nor rescind the notification nor would it substitute its views for that of corporation. Even if the conclusion arrived at by the corporation is one of two or more possible views, and the view canvassed on behalf of the appellant were to appeal to the Court, even then no interference would be called for, provided the decision of the corporation to rescind the notification dated 06.09.2010 does not violate the Article 14 of the Constitution of India. 22. Apex Court in Shimnit Utsch India Private Limited and another (supra) held that it is true that the State or its tendering authority is bound to give effect to essential conditions of eligibility stated in a tender document and is not entitled to waive such conditions but that does not take away its administrative discretion to cancel the entire tender process in public interest provided such action is not actuated with ulterior motive or is otherwise not vitiated by any vice or arbitrariness or irrationality or in violation of some statutory provisions. It is always open to the State to give effect to new policy which is wished to pursue keeping in view overriding public interest” and subject to principles of Wednesbury reasonableness. 23. It is always open to the State to give effect to new policy which is wished to pursue keeping in view overriding public interest” and subject to principles of Wednesbury reasonableness. 23. It further held that the State or its tendering authority is bound to give effect to essential conditions of eligibility stated in a tender document and not entitled to waive such conditions but that does not take away its administrative discretion to cancel the entire tender process in public interest provided such action is not actuated with ulterior motive arbitrariness or irrationality or is in violation of some statutory provisions. It is always open to the State to give effect to the policy it wished to keep in view over riding public interest and subject to the principles of Courts reasonableness. 24. In view of the aforesaid discussion, the principle laid down by this Court and Apex Court as discussed supra, the respondents have decided to cancel the subject tender on the ground of the aforesaid two errors in the subject advertisement. i.e. There is no arbitrariness in it. 25. In view of the aforesaid discussion, this Court is of the considered opinion that there is no error in the impugned proceedings dated 29.09.2021. The petitioner failed to make out any case to interfere with the said impugned proceedings dated 29.09.2021 and this Writ Petition is deserved to be dismissed. 26. Accordingly, the Writ Petition is dismissed. There shall be no order as to costs. As a sequel, miscellaneous applications, if any, pending in the Writ Petition, shall also stand closed.