K. Tamilarasi And Others vs Hindustan Petroleum Corporation ...
2021 Latest Caselaw 6356 Cal

                  IN THE HIGH COURT AT CALCUTTA
                    CIVIL APPELLATE JURISDICTION
                             (Appellate Side)
                                                MAT 991 of 2021
                                             I.A. No. CAN 1 of 2021

                                         (Through Video Conference)

                                                   Reserved on: 25.11.2021
                                                   Pronounced on: 15.12.2021

K. Tamilarasi and Others
                                                                      ...Appellants
                                      -Vs-
Hindustan Petroleum Corporation Limited and Others
                                                                      ...Respondents

Present:-

Mr. Sirsanya Bandyopadhyay, Ms. Deboleena Ghosh, Mr. Rahul Kumar Singh, Mr. Tapajit Das, Advocates ... for the Appellants

Mr. Kishore Datta, Mr. Prasun Mukherjee, Mr. Deepak Agarwal, Advocate

... for the Respondent

Coram: THE HON'BLE JUSTICE PRAKASH SHRIVASTAVA, CHIEF JUSTICE THE HON'BLE JUSTICE RAJARSHI BHARADWAJ, JUDGE

Prakash Shrivastava, CJ:

1. By this appeal, the writ petitioners have challenged the order of

the learned Single Judge dated 09thAugust, 2021, whereby, WPA 11330 of

2021 has been dismissed.

2. The appellants are the three different bidders who had filed the

writ petition before the learned Single Bench with the plea that they had

submitted their bids in response to the Notice Inviting Tender (NIT) issued

by the respondent No. 1 in March, 2018 for owned Tank Trucks, attached 2 MAT 991 of 2021

Trucks, proposed Trucks and additional Trucks for bulk and easy

transportation. The petitioners had quoted total seven (07) Tank Trucks

(TTs) and they were issued Letter of Acceptance (LOA) by the respondent

Hindustan Petroleum Corporation Limited (HPCL) for four (04) tank trucks

on 01st November, 2018. The petitioners remained aggrieved for non-

issuance of the LOA for remaining three trucks, therefore, they had filed

the writ petition in July, 2021 with a prayer to direct the official respondent

to issue LOA to the petitioners for their remaining trucks. Allegation was

made by the petitioner that the LOA to other bidders for lower models were

issued. Learned Single Judge after examining the record has dismissed the

petition.

3. Learned Counsel for the petitioners submit that the learned

Single Judge has committed an error in dismissing the petition on the

ground of delay without appreciating that the petitioners had filed the

petition after they had come to know that other Tank Truck companies with

lower models of TTs were issued the LOA. He further submits that there

are several factual errors in the order of the learned Single Judge and

placing reliance upon the judgment of the Hon'ble Supreme Court in the

matter of Ramachandra Shankar Deodhar and Others vs. The State of

Maharashtra and Others, (1974) 1 SCC 317, he had submitted that when

there is violation of fundamental right, the writ petition could not be

dismissed on the ground of delay.

4. Learned Counsel for the respondent has opposed the petition by

submitting that there was unexplained delay in filing the petition.

Meanwhile, the Earnest Money Deposit (EMD) was returned to the

petitioners and that, after a lapse of time, there is no requirement of TTs by

the respondent and that the petitioners were given ad hoc induction as per 3 MAT 991 of 2021

the preference and the petitioners have not been discriminated as out of

their seven trucks, LOA for four trucks was issued.

5. Having heard the learned Counsel for the parties, from the

perusal of the record it is noticed that the learned Single Judge is justified

in holding that the petitioners had approached the Court belatedly without

proper explanation for the delay, and further holding that the petition was

hopelessly barred by the principles of delay and latches. Counsel for the

petitioner has placed reliance upon paragraph 14 of the writ petition in an

attempt to explain the delay but in that paragraph also, the petitioners have

failed to disclose the source from which and the manner in which they had

come to know about the factum of issuance of LOA to other companies in

October, 2019. Such a vague plea cannot give a fresh cause of action to the

petitioner. Admittedly, the NIT was issued in the year 2018. On 01st

November, 2018, out of seven TTs, the LOA for four TTs was issued to the

petitioners. Therefore, if the petitioners were aggrieved, they could have

approached the Court at that time but they waited till 2021.

6. That apart, it is also worth noting that in the writ petition, an

allegation that the LOA to other bidders with lower models were issued but

no such material substantiating the same was filed nor the names of other

bidders to whom such LOA in irregular manners were issued. The

petitioners had prayed for revocation of LOA issued to the other bidders

without impleading them as party in the petition and without disclosing the

particulars and details of the LOA.

7. Learned Single Judge had also rightly noted the defect of filing

combined petition by the three bidders who stand on different footing by

noting that their cause of action was distinct and separate. That apart, it is

also noticed that subsequently, the EMDs were returned by the HPCL to 4 MAT 991 of 2021

the petitioners in the month of May/August, 2019. Therefore, the Counsel

for the respondent is justified in raising the plea that the petitioners had

waived their right by accepting the EMDs.

8. It has also been pointed out by the learned Counsel for the

respondent that when the tender was floated in 2018, there was an

estimated requirement of 563 TTs and in course of time, the requirement

has been exhausted, therefore, now there is no requirement. Hence, at this

stage, the petitioners are not justified in raising the belated grievance. It is

not a case of complete denial to the petitioners. Out of seven TTs, they

were allotted the LOA of four TTs and they have also been given the

benefit of ad hoc induction. The alleged typographical errors in the order of

the learned Single Judge have no effect on the conclusion drawn by him.

There is no violation of any fundamental right of the petitioner in the facts

of the present case, therefore, they are not entitled to the benefit of

judgment of the Hon'ble Supreme Court in the case of Ramachandra

Shankar Deodhar and Others (Supra).

9. In these circumstances, we are of the opinion that learned Single

Judge has not committed any error in dismissing the writ petition. This

appeal is found to be devoid of any merit, which is accordingly dismissed.

10. The connected application(s), if any, is also disposed of.

(PRAKASH SHRIVASTAVA) CHIEF JUSTICE

(RAJARSHI BHARADWAJ) JUDGE Kolkata 15.12.2021 ___________ PA(RB)