Mohan Shivaji Tonde vs Government Of India Through Its ...
2021 Latest Caselaw 4151 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   BENCH AT AURANGABAD


            901 CIVIL WRIT PETITION NO.4208 OF 2021

          Mohan Shivaji Tonde
          Age : 35 years, Occu.: Agril.,
          R/o.: Swarajya Nagar Barshi Road,
          Beed, Taluka & District : Beed ....          PETITIONER

                  VERSUS

 1.       Government of India
          Through its Ministry of
          Petroleum and Natural Gas,
          New Delhi

 2.       Indian Oil Corporation Ltd.
          Through its Divisional General Manager,
          Aurangabad Circle Ofce,
          "Indian Oil Bhawan", Plot No.99,
          Jyoti Nagar, Aurangabad          ....     RESPONDENTS

                                  ...
        Advocate for Petitioner : Mr. Shivprasad G. Jadhavar
         Advocate for Respondent No.2 : Mr. A. P. Bhandari
                                  ...

                               CORAM: SUNIL P. DESHMUKH &
                                        ABHAY AHUJA, JJ.

DATED: 8th MARCH, 2021.

JUDGMENT : (PER ABHAY AHUJA, J.) :

1. Rule. Rule made returnable forthwith. By consent of

learned counsel for the parties, heard fnally.

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2. By this petition fled under Article 226 of Constitution of

India, the petitioner is challenging communication dated 21-

01-2020, whereby the petitioner has been found ineligible

for the RO dealership for the reason that, "Stamp paper of

Appendix III A not purchased in the name of the

deponent and caste certifcate is NT".

3. It is the case of the petitioner that pursuant to the

advertisement dated 25-11-2018 published by respondent

no.2 Corporation inviting applications for retail outlet (petrol

pump) dealership at various places in the State of

Maharashtra including one such location being Sonimoha on

Telgaon Dharur Road, in the Aurangabad Division, reserved

for OBC category, the petitioner submitted online application

on 22-12-2018 for the said location in OBC category.

Pursuant to a draw held on 25-06-2019, petitioner was

selected for RO dealership and by communication dated 26-

06-2019 the petitioner was requested to remit Rs.40,000/-

online towards initial security deposit and was also

requested to submit various documents including those in

respect of the petitioner's specifc eligibility criteria of

belonging to OBC category.

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4. Petitioner deposited an amount of Rs.40,000/- on 2 nd

July, 2019. He has submitted declaration dated 22-12-2018

in Appendix III-B of his brother Shri Bharat Shivaji Tonde with

respect to land ofered for the proposed petrol pump. He

also submitted copy of caste certifcate dated 09-06-2003

indicating the petitioner belonging to Nomadic Tribe (D)

Vanjari category as well as declaration required as per

Appendix VII-B also dated 22-12-2018 stating that he

belongs to OBC community which is recognized as a

backward class by the Government of India for the purpose

of reservation in services as per the orders of the DoPT

Memorandum dated 08-09-1993 modifed on 14-10-2008

and also that he does not belong to the Creamy Layer.

5. On 21-01-2020, respondent no.2 communicated to the

petitioner that the petitioner's candidature was not found to

be eligible for RO dealership as the stamp paper of

Appendix-III A was not purchased in the name of the

deponent and caste certifcate was of NT.

6. Thereafter, the petitioner approached the Grievance

Redressal Committee of respondent no.2 seeking to quash

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the rejection communicated by respondent no.2. After

which he has obtained OBC caste certifcate dated 02-02-

2020, pursuant to an application made on 31-01-2020.

7. Mr. Jadhavar, learned counsel for the Petitioner submits

that the communication dated 21-01-2020 deserves to be

quashed and set aside and respondent no.2 be directed to

issue letter of intent in favour of the petitioner. As far as the

ground of rejection with respect to Appendix III A is

concerned, he submits that the stamp paper is in the name

of the applicant petitioner and the declaration is by his

brother who has been certifed as being member of Family

as per Appendix III -B dated 22-12-2018 given by Advocate.

He would submit that the said land has been legitimately

ofered for the location of the retail outlet by applicant's

brother and who has no objection if the said land is leased to

the petitioner for the purpose of retail outlet, which is as per

the category for which the petitioner has submitted the

application under the advertisement.

8. With respect to the other reason for ineligibility that

the Caste Certifcate being NT, he would submit that the

application was invited by respondent no.2 for retail outlet

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dealership at Sonimoha under the OBC category and as such

the petitioner had applied for the same. He would submit

that as was required by respondent no.2 by letter dated 26-

06-2019, petitioner had submitted declaration of being OBC

in Appendix VII B and the said letter had not requested for

the OBC certifcate. Referring to the terms of the brochure,

learned counsel would submit that neither the online

application nor the communication dated 26-06-2019

requested for submission of the OBC certifcate and that

after the online application, the petitioner was, vide

communication dated 26-06-2019 declared as selected

candidate pursuant to draw of lots and the communication

dated 21-01-2021 fnding him ineligible on the basis of

documents is nothing but frustrating a right created in

favour of the petitioner. In any event, the learned counsel

vehemently submits, that Nomadic Tribe (D) Vanjari falls

under OBC category at serial no.146 in the central list of

OBCs in Maharashtra and that he had submitted copy of the

caste certifcate issued by the Sub-Divisional Ofcer, Beed

on 09-06-2003 certifying that the petitioner belonging to

NT(D) Vanjari Tribe.

9. It is further submitted that neither in the advertisement

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nor in the brochure, it is specifed that the caste certifcate

should be of a specifc date in order to claim beneft of

reservation / or the location reserved for a particular

category. He submits that in the absence of such specifc

requirement, the impugned order is illegal, arbitrary and

unjust.

10. Learned counsel for the petitioner further submits that

reservation is provided to the backward class people so as to

uplift them and to bring them in main stream. Reservation

is provided to the backward class people and not to the

certifcate. In order to claim benefts of reservation, person

must be belong to that particular reserved category. Caste

certifcate issued by the competent authority is necessary

just to ascertain his / her social status i.e. caste and date of

such certifcate is absolutely irrelevant. Certifcate issued by

the competent authority is just declaration of caste / social

status of a person and it does not confer caste or social

status of said person. He submits that the approach of

respondent no.2 is arbitrary, unreasonable and unjust and

therefore the communication dated 21-01-2020 deserves to

be quashed and set aside.

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11. On the other hand, Mr. Bhandari, learned counsel for

respondent no.2 would submit that the terms of brochure

are very clear. He draws our attention to the specifc

eligibility criteria contained in Clause 4 (vi)(b) of the

brochure pertaining to the Other Backward Classes to

submit that eligible candidates belonging to other backward

classes should be recognized by the concerned State as OBC

in which the location has been advertised. He also draws

our attention to a Note on page 12 of the Brochure with

regard to submission of documents by selected candidates

that all certifcates / documents required for meeting

eligibility / specifc eligibility criteria should be in possession

of the applicant and valid as on the date of application. For

the sake of ready reference the said note is reproduced as

under :

"Note : with regard to submission of documents by selected candidates :

1. All certifcates / documents required for meeting Eligibility / Specifc eligibility criteria should be in possession of the applicant and valid as on date of application ....."

12. Learned counsel for respondent no.2 would, therefore,

submit that respondent Corporation is justifed in rejecting

the candidature of the petitioner. He relies upon a decision

of this court in the case of Navnath Shankar Badage Vs.

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Indian Oil Corporation Limited and another in Writ Petition

No. 5812 of 2019 passed on 18 th June, 2019 to submit that in

an almost identical situation this court has dismissed the

petition holding that all certifcates / documents required for

meeting eligibility criteria should be in possession of the

applicant and valid as on the date of application and that the

attempt of the petitioner to show that he is belonging to the

OBC category is of no consequence as the same is futile

attempt or an afterthought theory of the petitioner.

13. We have heard learned counsel for the parties and with

their assistance also perused the papers and proceedings in

the matter.

14. The facts being undisputed, the issue at hand is

whether the communication dated 21-01-2020 rejecting the

eligibility of the petitioner for retail outlet dealership on the

grounds that i) stamp paper of Appendix III-A not purchased

in name of the deponent and ii) caste certifcate is of NT is

tenable or not.

15. Coming to the frst issue with respect to the stamp

paper being in the name of the petitioner, whereas the

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declaration being made by his brother Shri Bharat Shivaji

Tonde, it is observed from page 36 of the Writ Petition that

the said objection appears to be valid in view of Clause-11 of

the brochure, Bullet-2 to the Note in paragraph 11 of the

brochure with respect to AFFIDAVIT (page 20 of the

brochure) (version 1/24-11-2018) which requires that "All

Stamp Papers should be purchased in the name of the

deponent".

16. Moreover the same is also a requirement as per

Section 30 of the Maharashtra Stamp Act, 1958, which is

quoted as under :

"Section 30 : Duties by whom payable : In the absence of an agreement to the contrary, the expense of providing the proper stamp shall be borne :-

(a) in the case of any instrument described in any of the following articles of Schedule I, namely :-

            No.2               (Administration Bond),
            No.6               (Agreement relating to Deposit of Title-
                               deeds, Pawn or Pledge),
            No.13              (Bond),
            No.14              (Bottomry Bond),
            No.28              (Customs Bond),
            No.33              (Further Charge),
            No.35              (Indemnity Bond),




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            No.40              (Mortgage Deed),
            No.52              (Release),
            No.53              (Security Bond or Mortgage Deed),
            No.55              (Settlement),
            No.      [59(b))       (Transfer       of    debentures,            being

marketable securities whether the debenture is liable to duty or not, except debentures provided for by section 8 of the Indian Stamp Act, 1899), No. 59(b) (Transfer of any interest secured by a bond or mortgage deed or policy of insurance), by the person drawing or making such instrument;

(b) in the case of a conveyance (including a conveyance of mortgaged property) by the grantee; in the case of a lease or agreement to lease by the lessee or intended lessee;

(c) in the case of a counter part of a lease by the lessor;

(d) in the case of an instrument of exchange by the parties in equal shares;

(e) in the case of a certifcate of sale by the purchaser of the property to which such certifcate relates ;

(f) in the case of an instrument of partition by the parties thereto in proportion to their respective shares ini the whole property partitioned, or, when the partition is made in execution of an order passed by a Revenue Authority or Civil Court or Arbitrator, in such proportion, as such Authority, Court or (arbitrator directs;)

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(f-a) in case of instruments of works contract as provided in Article 63 of SCHEDULE I, by the person receiving the contract )

(g) in any other case, by the person executing the instrument]".

Therefore the rejection on this ground is upheld, unless

the 2nd respondent has waived it, which does not appear to

be the case.

17. Coming to the issue with respect to the caste

certifcate being NT, the arguments taken by the respondent

no.2 appear to be tenable. The specifc eligibility criteria

contained in Clause-4 (vi)(b) of the brochure requires that

candidates belonging to OBC should be recognized as such

by the concerned State only location has been advertised.

Not only that the note on page 12 of the brochure referred

to above, clearly requires the petitioner to be in possession

of a valid certifcate on the date of application. Admittedly,

the petitioner was not in possession of the required OBC

certifcate as on the date of the application. The application

for the retail outlet was made on 22-12-2018, whereas the

OBC certifcate was obtained on 02-02-2020 pursuant to

application made on 31-01-2020 clearly indicating that the

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required certifcate was not even issued to the petitioner let

alone it being in possession of the applicant and valid as on

the date of the application. We also observe from page 62

of the brochure that the required declaration in Appendix

VII-A, which is a standard format required for OBC category

certifcate as required under the specifc eligibility criteria

pursuant to the 2nd respondent's letter dated 26-06-2019

does not appear to have been submitted. But only the caste

certifcate dated 09-06-2003 indicating the petitioner

belonging to NT(D) Vanjari category appears to have been

submitted along with VII-B declaration described earlier. We

are therefore, unable to accept the submissions made on

behalf of the petitioner.

18. Coming to the argument of the learned counsel for the

petitioner that the petitioner was declared selected

candidate pursuant to communication dated 26-06-2019 and

that the defendant's communication dated 21-01-2021 is a

frustration of right created in his favour. We note from the

communication dated 26-06-2019 which intimated that the

petitioner had been declared selected based on a draw of

lots, that the same is clearly a preliminary intimation and is

subject to the compliance of terms and conditions. For the

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sake of convenience, the said paragraph in the

communication dated 26-06-2019 is quoted as under :

"This is only a preliminary intimation towards your selection for Retail Outlet dealership. However, the award of the dealership is subject to compliance of terms and conditions of the Corporation in this regard".

19. Thus, the communication specifcally informs the

petitioner that his selection is only a preliminary intimation

subject to the terms and conditions. We are therefore

unable to accept the submission of the counsel that a right

has been created in favour of the petitioner.

20. Also to keep harping that the petitioner had a

certifcate of Nomadic Tribe, which under the central list of

OBCs in Maharashtra is at serial no.146 and therefore, he

already had the social status of OBC and it would not be

material as to when the said certifcate is obtained, is also

fallacious. This is because despite the terms of the brochure

requiring the petitioner to be in possession of a valid OBC

certifcate in form VII-A from the concerned State in which

the location has been advertised as on the date of

application, the petitioner has obtained the same only on 02-

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02-2020, pursuant to an application dated 31-01-2020,

which is after date of rejection viz.21-01-2020. The

petitioner has after he obtained the Nomadic Tribe

certifcate in 2003, had obtained the OBC certifcate only on

02-02-2020 to make out a case against the rejection of his

claim. Nothing had prevented the petitioner to approach the

authority to obtain the OBC certifcate earlier. Being

therefore in respectful agreement with the views expressed

by this court in the case of Navnath Shankar Badage (supra),

we are unable to accept the contention of the learned

counsel for the petitioner that once the social status has

been declared, then it is immaterial as to when the

certifcate is issued. This is more so because we are dealing

with the case of a tender where several candidates would

apply and only the ones who comply with the specifc terms

of the said tender would be eligible to be issued the letter of

intent. If the petitioner is allowed on the basis of the

arguments of the learned counsel to proceed further in the

process, it would place similarly rejected candidates who are

unable to approach this court on an unequal footing, which

cannot be permitted.

21. Further when the terms of a tender / advertisement are

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so specifc as have been described above, there is no room

for giving a go by to the same especially in matters of public

tenders as this one. The words used in the advertisement or

the brochure could not be ignored and they must be given

meaning and their necessary signifcance.

22. In this context paragraphs 15 and 16 of a recent

decision of the Supreme Court in the case of Vidarbha

Irrigation Development Corporation Vs. Anoj Kumar

Agarwal, 2019(2)SCALE134 are apt and can be quoted as

under :

"15. It is clear even on a reading of this judgment that the words used in the tender document cannot be ignored or treated as redundant or superfuous- they must be given meaning and their necessary signifcance. Given the fact that in the present case, as essential tender condition which had to be strictly complied with was not so complied with, the Appellant would have no power to condone lack of such strict compliance. Any such condonation, as has been done in the present case, would amount to perversity in the understanding or appreciation of the terms of the tender conditions, which must be interfered with by a constitutional court .

16. A subsidiary contention has been raised that even the bank guarantee subsequently furnished was for a period of 39 months and not for 40 months. This need not be gone into in view of our fnding on the frst point".

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23. It may not be out of place to mention here that the

advertisement by the public corporation is for award of

dealership of a petrol pump and as such is a contractual

matter. We are therefore, reminded of the principles laid

down by the Supreme Court to the extent judicial review can

be invoked in such matters. Paragraph 19 of the decision of

the Supreme Court in the case of Bakshi Security and

Personnel Services Private Limited Vs. Devkishan

Computed Private Limited and others, (2016) 8 SCC

446 summarises these principles and the same is quoted as

under :

"19. It is also well to remember the admonition given by this Court in Michigan Rubber (India) Limited v. State of Karnataka and Others, in cases like the present, as under:- (SCC p.228, para 21)

21. "In Jagdish Mandal vs. State of Orissa, the following conclusion is relevant : (SCC p. 531, para 22) "22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fdes. Its purpose is to check whether choice or decision is made 'lawfully' and not to check whether choice or decision is 'sound'. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fde and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and

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persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or fnal, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions:

(i) Whether the process adopted or decision made by the authority is mala fde or intended to favour someone;

OR Whether the process adopted or decision made is so arbitrary and irrational that the court can say: 'the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached';

(ii) Whether public interest is afected.

If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition of penal consequences on a tenderer/ contractor or distribution of State largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a diferent footing as they may require a higher degree of fairness in action."

24. Relying on the aforesaid principles and answering the

questions posed therein in the negative, we do not think that

this is a case for interference under Article 226, this being a

commercial and contractual matter, we refrain from

exercising our writ jurisdiction in the matter.

25. In the circumstances, on all counts, the petition must

fail. We therefore, dismiss the petition. Rule stands

discharged. No costs.

(ABHAY AHUJA, J.) ( SUNIL P. DESHMUKH, J. )

vsm/