Sukhjit Singh & Anr vs Hindustan Petroleum Corporation ...
2022 Latest Caselaw 6762 Cal

                      IN THE HIGH COURT AT CALCUTTA

                       Constitutional Writ Jurisdiction

                               Appellate Side

Present :-

The Hon'ble Justice Moushumi Bhattacharya.


                            W.P.A 19413 of 2018
                                    With
                               CAN 1 of 2022
                            Sukhjit Singh & Anr
                                     vs.
                Hindustan Petroleum Corporation Limited & Ors.


For the petitioners                  :       Mr. Sirsanya Bandopadhyay, Adv.
                                             Mr. Arka Kumar Nag, Adv.


For the respondent nos. 8            :       Mr. Debabrata Saha Roy, Adv.
&9                                   :       Mr. Subhankar Das, Adv.
                                     :       Mr. Neil Basu, Adv.




For HPCL                             :       Mr. Ranjan Bachawat, Sr. Adv.
                                             Mr. Chayan Gupta, Adv.
                                             Mr. Prasun Mukherjee, Adv.
                                             Mr. Deepak Agarwal, Adv.


Last Heard on                            :   20.09.2022.




Delivered on                             :   21.09.2022.
                                        2




Moushumi Bhattacharya, J.

1. The petitioners participated in a tender floated by the Indian Oil

Corporation Limited (IOC), Bharat Petroleum Corporation Limited (BPC) and

Hindustan Petroleum Corporation Limited (HPC) for bulk LPG transportation

contract by road for the State of Bihar. The petitioners are aggrieved by the

respondent Oil Manufacturing Companies (OMCs) not giving preferential

treatment to the petitioners under clause 4 of section 5 (Tender Evaluation

Criteria) of Part-A: Technical/Commercial Bid of the tender dated 23rd

January, 2018. Under the amended clause 4, the State registered Tank

Trucks (TTs) were to be given preference over other State registered TTs

subject to their quoting bids at floor rates. The case sought to be made out

by the petitioners is that although the petitioner no. 1 quoted 52 TTs and

the petitioner no. 2 quoted 15 TTs, the OMCs rejected 7 TTs of the petitioner

no. 1 and 14 TTs of the petitioner no. 2. Hence, of the 67 TTs quoted by the

petitioners, 21 TTs were rejected by the respondent OMCs. The reason for

refusing to give preferential treatment to the 21 TTs of the petitioners is that

the TTs bore a "NL" (Nagaland) mark.

2. According to the learned counsel appearing for the petitioners, the

refusal of preferential treatment on the ground of the TTs bearing a

Nagaland registration mark is wholly erroneous since all 21 TTs of the

petitioners were registered in Bihar and should hence have been given the

benefit of clause 4 of section 5 of the tender. In essence, the petitioners

claim that all 67 TTs of the petitioners (and not only 46 TTs) should have

been used by the OMCs for the scope of work contemplated in the NIT.

3. Respondent nos. 8 and 9 being the Registering Authority and Regional

Transport Officer, Motor Vehicles Department, Government of Bihar

respectively support the contention that the refusal to give preferential

treatment to all 67 TTs of the petitioners is without basis. Paragraph 5 of the

affidavit filed by the respondent nos. 8 and 9, enumerates a list of all the 21

TTs of the petitioners containing particulars of the dates of entry for

registration at Patna and the individual dates of registration. The list is in

support of the averment that the 21 TTs of the petitioners are registered at

Patna under the Department of Transportation, Government of Bihar. It is

relevant to state that the said affidavit was filed by the respondent nos. 8

and 9 pursuant to an order dated 2nd July, 2021. The affidavit of respondent

nos. 8 and 9 sufficiently takes care of the first plank of the objection taken

on behalf of the OMCs that the 21 TTs of the petitioners were rejected as

they bore Nagaland registration.

4. Section 47(1) of The Motor Vehicles Act, 1988 relates to assignment of

a new registration mark on removal of vehicle to another State. The said

provision deals with a situation where a motor vehicle registered in one

State has been kept in another State, for a period exceeding twelve months

and allows prescribed time to the owner to obtain a new registration mark.

Hence, the rejection of the 21 TTs of the petitioners on the ground that they

were not "State registered", i.e., not registered in Bihar at the relevant point

of time, is wholly without basis. It may also be relevant to state that under

section 2(37) of the 1988 Act, "registering authority" means an authority

empowered to register motor vehicles under Chapter IV of the Act and is

thus empowered to assign a new registration mark to a vehicle under

section 47(1) of the Act. The respondent OMCs cannot construe the

provision of the Act in a manner which is beyond the contemplation of the

provisions of the Act and to the detriment of the petitioners.

5. The related question is whether the 21 TTs of the petitioners were

registered in Bihar at the relevant point of time i.e. as on 10th April, 2018

which was the last date for submission of completed e-Tender documents

online. The relevant date would appear from a Corrigendum of the tender

floated by the OMCs on 23rd January, 2018. Clause 2 of the Corrigendum

gives the tender schedule for downloading of the tender and specifies 10th

April, 2018 as the last date for submission of the tender documents.

6. As stated above, the list of registration particulars of the 21 TTs

belonging to the petitioners given in paragraph 5 of the affidavit of the

respondent nos. 8 and 9 show that save and except two TTs which were

registered at Patna on 25th January, 2018, the remaining 19 TTs were

registered at Patna on 7th March, 2018. Hence, all 21 TTs of the petitioners

were registered in the State of Bihar as on the last date of submission of the

e-Tender documents being 10th April, 2018. This further strengthens the

case made out by the petitioners and goes to show that the refusal to give

preferential status to the remaining 21 TTs of the petitioners on the ground

stated in the affidavit-in-opposition of the OMCs is totally untenable.

7. This Court is therefore inclined to direct the OMCs to rescind the

decision of disallowing the 21 TTs of the petitioners as preferential under the

amended clause 4 of the Section 5 of the tender.

8. The consequential relief prayed for is to grant liberty to the petitioners

to approach an appropriate civil forum for claiming damages against the

respondent OMCs for the loss of business from 2018-2022. Counsel submits

that although this relief is not part of the writ petition, the reliefs can be

moulded for a complete adjudication of the lis.

9. This Court finds substance in the contention particularly since the

petitioners had no way of knowing that the writ petition, filed in 2018, would

remain pending adjudication for 4 years until 2022. The objection taken on

behalf of the OMCs that the petitioners accepted plying their TTs in Assam

and have received payment for the same in the intervening 4 years cannot

be accepted for the following reasons. First, the petitioners accepted the

offer and are using the vehicles in Assam without prejudice to their rights;

and second, there is a substantial gap in the profits which the petitioners

could have made in Bihar, where all the TTs of the petitioners were

registered as compared to Assam which is a neighbouring State. The NIT in

fact contains a provision of "Cluster of States" (clause V) which groups West

Bengal, Odisha, Bihar and Jharkhand as one cluster and Assam &

Meghalaya, Tripura, Manipur, Nagaland, Arunachal Pradesh and Mizoram

as a different cluster.

10. Since this Court has specifically found that the ground of refusing to

treat all the TTs of the petitioners under the preferential clause cannot be

sustained, the petitioners are also found to be entitled to consequential relief

for the loss of business in respect of the 21 TTs which were excluded from

the preferential clause. The moulding of relief is all the more warranted

since 4 years have already passed out of the contract period of 5 years, and

the petitioners have lost substantial business during those 4years.

11. The fact that the petitioners have been deprived of a valuable right in

terms of Article 19(1)(g) of the Constitution of India is without doubt. The

petitioners were before the Court in September, 2018 without delay, against

the decision of HPCL refusing preferential status to 21 TTs of the petitioners.

The fact of the petitioners' vehicles having been used in the State of Assam

cannot diminish the petitioners' right to claim damages for the 4 years that

the writ petition has been kept pending. Clause II of the NIT indicates a

RTKM (roadship before kilometer) for the State of Bihar further reflecting

that a Tank Truck (TT) used in any other State outside Bihar would incur a

higher monthly mileage rate per truck in RTKM. The petitioners are also at

the fag end of the contract as clarified in clause II of the NIT which states

that the contract will be valid for a period of 5 years with effect from 1st

September, 2018.

12. In other words, had the petitioners TTs been inducted in Bihar from

September, 2018, the petitioners would not have incurred any loss or

additional expense in plying the 21 TTs outside the State of Bihar. The

arbitrary decision of the respondents to exclude these 21 TTs from the

preferential clause is wholly attributable for the loss.

13. In Dwarka Nath vs. Income Tax Officer, Special Circle, D-Ward, Kanpur;

AIR 1966 SC 81, the Supreme Court, in the irreplaceable words of Justice K.

Subba Rao, opined that Article 226 of the Constitution confers a wide power

on the High Courts "to reach injustice wherever it is found". The Supreme

Court was of the view that the High Courts have the power to issue not only

writs but directions and orders other than the prerogative writs which

enables High Courts to mould the reliefs to meet the peculiar and

complicated requirements of this country. Hence, there is no impediment, in

fact or in law, to suitably mould the relief in the present writ petition in

order to correct the injustice caused to the petitioners by the arbitrary

decision of the respondent OMCs.

14. A Coordinate Bench in the judgment dated 12th March, 2021 in WPA

No.17970 of 2018 (Cima Roadliners vs. Hindustan Petroleum Corporation Ltd.)

was also of the view that the rejection of the petitioners bid by the

Corporation on the ground that the TTs had not been registered in Bihar

was unreasonable and discriminatory. The Corporation was directed to act

in terms of the tender and give preferential treatment to the TTs offered by

the petitioners. This Court has been informed that the said judgment was

not challenged by the respondent Corporation and has attained finality. The

present petition contains almost identical facts and the petitioners are

placed on a very similar footing as the petitioners in Cima Roadliners. This

Court does not find any reason to take a different view on the identical facts

in the present writ petition.

15. Consortium of Titagarh Firema Adler S.P.A. - Titagarh Wagons Ltd. vs.

Nagpur Metro Rail Corporation Limited; (2017) 7 SCC 486 involved

interpretation of the tender conditions which is not the relief claimed in the

present case. Silppi Constructions Contractors vs. Union of India; (2020) 16

SCC 489 involved two interpretations where the Supreme Court held that

the interpretation of the author must be accepted. In the present case, the

interpretation of the Coordinate Bench in Cima Roadliners support the case

made out by the petitioners. Agmatel India (P) Ltd. vs. Resoursys Telecom;

(2022) 5 SCC 362 involved subsequent facts which the writ petitioner sought

to take advantage of. Moreover, the said case also involved interpretation of

the conditions in the tender document which is also not the case here.

16. In view of the above, this Court finds sufficient reason to grant the

relief prayed for. The respondent OMCs shall forthwith issue appropriate

directions for the remaining 21 TTs offered by the petitioners and grant

preferential treatment to the said TTs. The same should be done within a

period of three weeks from the date of communication of this judgment and

order. The petitioners are also given liberty of approaching a civil forum for

claiming damages for the intervening 4 years from September, 2018 till the

date the OMCs accord preferential status to the 21 TTs of the petitioners.

The claim for damages shall be subject to limitation and the discretion of the

Court receiving the prayer for claim.

17. WPA 19413 of 2018 is disposed of in terms of the above. All connected

applications are also disposed of accordingly.

Urgent photostat certified copies of this judgment, if applied for, be

supplied to the respective parties upon fulfillment of requisite formalities.

(Moushumi Bhattacharya, J.)