Kerala High Court
Babu Joseph K vs Regional Manager on 21 March, 2023
W.P.(C) No. 1084/2022 & batch : 1:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 21ST DAY OF MARCH 2023 / 30TH PHALGUNA, 1944
WP(C) NO. 1084 OF 2022
PETITIONER/S:
1 BIJU MATHEW
AGED 47 YEARS
TRANSPORTING AND LOGISTICS MANNULLIL, KUMARAPURAM P.
O., MORAKKALA, ERNAKULAM DIST., PIN - 683 565.
2 BABU JOSEPH K.
CHIEF EXECUTIVE, ROSE FLAMES, BHARAT GAS DISTRIBUTORS,
64/2208, ATHIPARAMBIL LANE, WEST KATTAKKARA ROAD,
KALOOR, COCHIN - 682 017.
BY ADVS.
SRI. KURIAN GEORGE KANNANTHANAM (SR.)
SRI. TONY GEORGE KANNANTHANAM
SRI. THOMAS GEORGE
RESPONDENT/S:
1 REGIONAL MANAGER
HINDUSTAN PETROLEUM CORPORATION LIMITED, HPCL LPG
PLANT, IRUMPANAM, TRIPUNITHURA, COCHIN - 682 309.
2 TERRITORY MANAGER
BHARAT PETROLEUM CORPORATION LIMITED, BPCL LPG BOTTLING
PLANT, FCI ROAD, PEELAMEDU, COIMBATORE - 641 004.
3 THE TERRITORY MANAGER
BHARAT PETROLEUM CORPORATION LIMITED, BPCL LPG BOTTLING
PLANT, AMBALAMUGAL, COCHIN - 682 302.
4 P. J. BABU
MANAGING PARTNER, PONMANKAL TRANSPORTS, CARITAS -
AMMANCHERRY ROAD, THELLAKOM, KOTTAYAM - 686 630.
BY ADVS.
SRI. M.GOPIKRISHNAN NAMBIAR
SRI. G.RAJAGOPAL
SRI. K.JOHN MATHAI
SRI. JOSON MANAVALAN
SRI. KURYAN THOMAS
SRI. PAULOSE C. ABRAHAM
SRI. RAJA KANNAN
SMT. S.LEELALAKSHMI
SMT. RAMOLA N
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.03.2023,
ALONG WITH W.P.(C) NOS. 7174, 11803, 33647 & 39729 OF 2022, THE COURT
ON 21.03.2023 DELIVERED THE FOLLOWING:
W.P.(C) No. 1084/2022 & batch : 2:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 21ST DAY OF MARCH 2023 / 30TH PHALGUNA, 1944
WP(C) NO. 7174 OF 2022
PETITIONER/S:
BABU JOSEPH K
PROPRIETOR, ROSE FLAMES, BHARATGAS DISTRIBUTORS,
64/2208, ATHIPARAMBIL LANE, WEST KATTAKKARA ROAD,
KALOOR, COCHIN 682 017.
BY ADVS.
SRI. KURIAN GEORGE KANNANTHANAM (SR.)
SRI. TONY GEORGE KANNANTHANAM
SRI. THOMAS GEORGE
RESPONDENT/S:
1 REGIONAL MANAGER
HINDUSTAN PETROLEUM CORPORATION LIMITED, HPCL LPG
PLANT, IRUMPANAM, TRIPUNITHURA, COCHIN 682 309.
2 THE REGIONAL LPG MANAGER (SOUTH)
BHARATH PETROLEUM CORPORATION LTD, NO. 1, RANGANATH
GARDENS, OFF 11TH MAIN ROAD, ANNA NAGAR WEST, CHENNAI
600 040.
3 TERRITORY MANAGER
BHARAT PETROLEUM CORPORATION LIMITED, BPCL LPG BOTTLING
PLANT, FCI ROAD, PEELAMEDU, COIMBATORE 641 004.
4 THE TERRITORY MANAGER
BHARAT PETROLEUM CORPORATION LIMITED, BPCL LPG BOTTLING
PLANT, AMBALAMUGAL, COCHIN 682 302.
5 P J BABU
MANAGING PARTNER, PONMANKAL TRANSPORTS CARITAS-
AMMANCHERRY ROAD, THELLAKOM, KOTTAYAM 686 630.
BY ADVS.
SRI. M.GOPIKRISHNAN NAMBIAR
SRI. K.JOHN MATHAI
SRI. JOSON MANAVALAN
SRI. KURYAN THOMAS
SRI. PAULOSE C. ABRAHAM
SRI. RAJA KANNAN
SMT. RAMOLA N
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.03.2023,
ALONG WITH W.P.(C) NOS. 1084, 11803, 33647 & 39729 OF 2022, THE COURT
ON 21.03.2023 DELIVERED THE FOLLOWING:
W.P.(C) No. 1084/2022 & batch : 3:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 21ST DAY OF MARCH 2023 / 30TH PHALGUNA, 1944
WP(C) NO. 11803 OF 2022
PETITIONER/S:
BABU JOSEPH. K
PROPRIETOR, ROSE FLAMES, BHARATGAS DISTRIBUTORS,
64/2208, ATHIPARAMBIL LANE, WEST KATTAKKARA ROAD,
KALOOR, COCHIN 682 017.
BY ADVS.
SRI. KURIAN GEORGE KANNANTHANAM (SR.)
SRI. THOMAS GEORGE
SRI. TONY GEORGE KANNANTHANAM
RESPONDENT/S:
1 REGIONAL MANAGER
HINDUSTAN PETROLEUM CORPORATION LIMITED, HPCL LPG
PLANT, IRUMPANAM, TRIPUNITHURA, COCHIN 682 309.
2 THE REGIONAL LPG MANAGER (SOUTH)
BHARAT PETROLEUM CORPORATION LTD, NO. 1, RANGANATH
GARDENS, OFF 11TH MAIN ROAD, ANNA NAGAR WEST, CHENNAI
600 040.
3 TERRITORY MANAGER
BHARAT PETROLEUM CORPORATION LIMITED, BPCL LPG BOTTLING
PLANT, FCI ROAD, PEELAMEDU, COIMBATORE 641 004.
4 THE TERRITORY MANAGER
BHARAT PETROLEUM CORPORATION LIMITED, BPCL LPG BOTTLING
PLANT, AMBALAMUGAL, COCHIN 682 302.
5 *ADDL R5 IMPLEADED:
BHARAT PETROLEUM CORP. LTD.
REPRESENTED BY ITS MANAGING DIRECTOR, BHARAT BHAVAN,
CURRIMBBOY ROAD, BALLARD ESTATE, MUMBAI-400 001.
(ADDL. R5 IS IMPLEADED AS PER ORDER DATED 20.06.2022 IN
I.A. 1 OF 2022 IN WP(C)11803/2022).
SRI. M. GOPIKRISHNAN NAMBIAR
SMT. RAMOLA N
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.03.2023,
ALONG WITH W.P.(C) NOS. 1084, 7174, 33647 & 39729 OF 2022, THE COURT
ON 21.03.2023 DELIVERED THE FOLLOWING:
W.P.(C) No. 1084/2022 & batch : 4:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 21ST DAY OF MARCH 2023 / 30TH PHALGUNA, 1944
WP(C) NO. 33647 OF 2022
PETITIONER/S:
BITTU B JOSEPH,
PROPRIETOR, ROSE CARRIERS, ATHIPARAMBIL LANE, KATTAKKARA
WEST ROAD, KALOOR, COCHIN - 682 017.
BY ADVS.
SRI. KURIAN GEORGE KANNANTHANAM (SR.)
SRI. TONY GEORGE KANNANTHANAM
RESPONDENT/S:
1 BHARAT PETROLEUM CORPORATION LTD.
BHARAT BHAVAN, 4 &.6, CURRIMBHOG ROAD, BALLARD ESTATE,
MUMBAI - 400 001 REPRESENTED BY CHAIRMAN/MANAGING
DIRECTOR
2 REGIONAL MANAGER
HINDUSTAN PETROLEUM CORPORATION LIMITED, HPCL LPG
PLANT, IRUMPANAM TRIPUNITHURA, COCHIN- 682 309.
3 THE REGIONAL LPG MANAGER (SOUTH),
BHARAT PETROLEUM CORPORATION LTD. NO.1, RANGANATH
GARDENS, OFF 11TH MAIN ROAD, ANNA NAGAR WEST, CHENNAI -
600 040.
4 THE TERRITORY MANAGER,
BHARAT PETROLEUM CORPORATION LIMITED, BPCL LPG BOTTLING
PLANT, AMBALAMUGAL, COCHIN - 682 302.
BY ADVS.
SRI. M.GOPIKRISHNAN NAMBIAR
SRI. K.JOHN MATHAI
SRI. JOSON MANAVALAN
SRI. KURYAN THOMAS
SRI. PAULOSE C. ABRAHAM
SRI. RAJA KANNAN
SRI. IZHAR MOHAMMED
SMT. RAMOLA N
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.03.2023,
ALONG WITH W.P.(C) NOS. 1084, 7174, 11803 & 39729 OF 2022, THE COURT
ON 21.03.2023 DELIVERED THE FOLLOWING:
W.P.(C) No. 1084/2022 & batch : 5:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 21ST DAY OF MARCH 2023 / 30TH PHALGUNA, 1944
WP(C) NO. 39729 OF 2022
PETITIONER/S:
1 BABU JOSEPH K
PROPRIETOR, ROSE FLAMES, BHARATGAS DISTRIBUTORS,
64/2208, ATHIPARAMBIL LANE, WEST KATTAKKARA ROAD,
KALOOR, COCHIN -682 017.
2 BITTU B.JOSEPH,
PROPRIETOR, ROSE CARRIERS, ATHIPARAMBIL LANE, KATTAKKARA
WEST ROAD, KALOOR, COCHIN - 682 017.
BY ADVS.
SRI. KURIAN GEORGE KANNANTHANAM (SR.)
SRI. TONY GEORGE KANNANTHANAM
SRI. THOMAS GEORGE
RESPONDENT/S:
1 BHARAT PETROLEUM CORPORATION LTD.
BHARAT BHAVAN, 4 & 6, CURRIMBHOG ROAD, BALLARD ESTATE,
MUMBAI - 400 001, REPRESENTED BY CHAIRMAN/MANAGING
DIRECTOR.
2 THE REGIONAL LPG MANAGER (SOUTH),
BHARAT PETROLEUM CORPORATION LTD. NO.1, RANGANATH
GARDENS, OFF 11TH MAIN ROAD, ANNA NAGAR WEST, CHENNAI -
600 040.
3 THE TERRITORY MANAGER,
BHARAT PETROLEUM CORPORATION LIMITED, BPCL LPG BOTTLING
PLANT, AMBALAMUGAL, COCHIN - 682 302.
4 REGIONAL MANAGER,
HINDUSTAN PETROLEUM CORPORATION LIMITED, HPCL LPG
PLANT, IRUMPANAM, TRIPUNITHURA, COCHIN -682 309.
BY ADVS.
SRI. M.GOPIKRISHNAN NAMBIAR
SRI. K.JOHN MATHAI
SRI. JOSON MANAVALAN
SRI. KURYAN THOMASP
SRI. PAULOSE C. ABRAHAM
SRI. RAJA KANNAN
SMT. RAMOLA N
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.03.2023,
ALONG WITH WP(C).1084/2022 AND CONNECTED CASES, THE COURT ON
21.03.2023 DELIVERED THE FOLLOWING:
W.P.(C) No. 1084/2022 & batch : 6:
SHAJI P. CHALY, J.
----------------------------------------------------------------------
W.P.(C). Nos. 1084, 7174, 11803, 33647 and 39729 of 2022
------------------------------------------------------------------------
Dated this the 21st day of March, 2023.
JUDGMENT
The captioned writ petitions are materially connected, in
respect of transportation contracts invited by the Bharat Petroleum
Corporation Ltd., to transport LPG cylinders, from the existing
contractors for the period 2021-2022, and from the open market for
the subsequent periods. Therefore, I heard them together and
proposed to pass this common judgment with the agreement of the
parties.
2. Insofar as W.P.(C) Nos. 1084 and 7174 of 2022 are
concerned, the learned Senior Counsel appearing for the petitioner
submitted that virtually, the reliefs sought for in the writ petitions
have become obsolete, consequent to the efflux of time; however,
it is submitted that since the pleadings and documents filed by the
rival parties are made in those writ petitions, they are to be relied
upon. The said two writ petitions are in relation to the tenders
invited by the Bharat Petroleum Corporation Limited from the
existing transport contractors to offer additional trucks for
transportation of the LPG cylinders.
3. The petitioners apparently purchased tank trucks from one
P. J. Biju, who is a party in the writ petitions, and is a transporting
contractor with the Hindustan Petroleum Corporation Ltd.
Therefore, when the contracts were invited from the existing
contractors, the petitioners submitted an affidavit offering 6 tank
trucks for the above purpose. The petitioners had also given a
letter to the Territory Manager of the Bharat Petroleum Corporation
Ltd., Coimbatore that out of the 6 trucks, 5 trucks were purchased
on 20.10.2021 and the process of change of ownership was
underway with the Regional Transport Officer, Kakkanad and as
soon as the process is over, details would be given to them, evident
from Exhibit P4 letter dated 20.11.2021 produced in W.P.(C) No.
1084 of 2022.
Anyhow, by Exhibit P5 intimation in the said writ petition
dated 31.12.2021, the Territory Manager, Bharat Petroleum
Corporation Ltd., Coimbatore rejected the offer of 4 trucks stating
that the trucks are in their current transport contract with M/s.
Hindustan Petroleum Corporation Ltd. and the petitioners should
obtain 'No Objection Certificate' from the said company for those
contracts. Two other defects are also mentioned.
4. It is significant to note that insofar as W.P.(C) Nos. 1084,
7174, and 11830 of 2022 are concerned, the contracts are invited
by the Territory Manager of the Bharat Petroleum Corporation Ltd.,
Coimbatore. I specifically mentioned the same for the basic reason
that the respondents have a contention that there is no territorial
jurisdiction for this Court to entertain those writ petitions.
5. The paramount contention advanced by the petitioners are
that the Hindustan Petroleum Corporation Ltd. had no authority to
direct the Bharat Petroleum Corporation Ltd. not to consider the
trucks offered by the petitioners for their use pursuant to the
notification issued on 16.11.2021 to the existing transport
contractors and therefore, the stand adopted by the Hindustan
Petroleum Corporation Ltd. is violative of Articles 14 and 19(1)(g) of
the Constitution of India.
6. It is also contented that the Bharat Petroleum Corporation
Ltd. was not justified in declining to consider the trucks offered by
the petitioners pursuant to Exhibit P1 notice dated 16.11.2021
solely on the ground that the petitioners had not obtained NOC from
the Hindustan Petroleum Corporation Ltd., since there was no such
condition in Ext.P1 notice; that there was no valid subsisting
agreement between the Hindustan Petroleum Corporation Ltd. and
the vendors of the trucks when the petitioners submitted Exhibit P2
offer to the notification and therefore, Hindustan Petroleum
Corporation Ltd. was not justified in insisting on their NOC.
7. It is further submitted that the Bharat Petroleum
Corporation Ltd. was bound to consider Exhibit P2 offer
independently without reference to the Hindustan Petroleum
Corporation Ltd. and rejection/non-consideration of petitioners'
proposal was based on extraneous considerations. Therefore, the
reliefs sought for by the petitioners in W.P.(C) No. 1084 of 2022 is
for a direction to consider Exhibit P2 offer/proposal given by the
petitioners pursuant to the notification in question.
8. In W.P.(C) No. 7174 of 2022, the petitioner is one of the
writ petitioners in the other writ petition seeking a direction to the
Regional LPG Manager (South), Bharat Petroleum Corporation Ltd.,
Chennai--2nd respondent, to consider the petitioner's tender
pursuant to Ext.P8 notification dated nil on its own merits without
insisting on the NOC from Hindustan Petroleum Corporation Ltd.; to
declare that the petitioner is not liable or obliged to get NOC of the
Hindustan Petroleum Corporation Ltd. for the purpose of Bharat
Petroleum Corporation Ltd.; to consider the petitioner's tender for
the supply of trucks pursuant to the said notification; and for a
direction to the Bharat Petroleum Corporation Ltd., Chennai not to
reject the petitioner's offer to provide trucks pursuant to Exhibit P8
for want of NOC from the first respondent and to declare that the
petitioner is entitled to have tender considered and evaluated along
with all other tenders received pursuant to Ext.P8 notification dated
08.02.2022.
9. In W.P.(C) No. 11803 of 2022, the very same petitioner in
W.P.(C) No. 7174 of 2022 seeks to quash Exhibit P10 rejection
letter dated 15.03.2022, whereby the offer made by the petitioner
against the open tender was rejected assigning the reason that the
trucks offered by the petitioner at Coimbatore LPG plant are part
of the existing transport contract for Hindustan Petroleum
Corporation Ltd. Kochi LPG plant as per e-mail received from M/s.
Hindustan Petroleum Corporation Ltd.; for a direction to the
Regional LPG Manager (South), Bharat Petroleum Corporation Ltd.,
Chennai to reconsider the petitioner's tender on its own merit
without insisting on the NOC from the Hindustan Petroleum
Corporation Ltd.; and for a further direction to the said Regional
LPG Manager to accept the petitioner's tender/offer, if the same is
otherwise in order.
10. In W.P.(C) No. 33647 of 2022, the petitioners seek a
direction to respondent Nos. 2 and 3 i.e., the Regional Manager,
Hindustan Petroleum Corporation Ltd., Irumpanam, Kochi and the
Regional LPG Manager (South), Bharat Petroleum Corporation Ltd.,
Chennai to accept the petitioner's tender being offered by him
pursuant to Exhibit P2 notification dated nil having the period for
submitting tender from 30.09.2022 to 21.10.2022, if the same is
otherwise in order; and to quash clauses 8(h) and (i) of the General
conditions of contract, which is common for all transport contracts;
and further to declare that the said terms and conditions are subject
to serial No. 11 of the check list for submission of documents
manually along with the EMD/tender fee, as not applicable to the
petitioner for submitting his tender.
11. In the said writ petition, an interim order was passed in
I.A. No. 1 of 2022, as per which the Regional Manager, Hindustan
Petroleum Corporation Ltd. Irumpanam, Kochi, respondent No.2,
was directed to take a decision on Exhibit P5 representation
submitted by the petitioner seeking to issue NOC for the trucks
purchased by the petitioner from a contractor engaged by the
Hindustan Petroleum Corporation Ltd.
12. Pursuant to the said direction, the Territory Manager of
the Hindustan Petroleum Corporation Ltd. has passed an order
dated 28.11.2022 declining NOC stating that Hindustan Petroleum
Corporation Ltd. cannot grant 'No Objection Certificate', since the
period of contract for which the agreement was executed for the
said four tank trucks has not expired and that the transporter M/s.
Ponmankal Transports has not obtained the said company's
permission for the withdrawal of the said tank trunks. The said
order is under challenge in W.P.(C) No. 39729 of 2022; and
therefore, the said writ petition is filed seeking to quash the said
order produced as Exhibit P6 dated 28.11.2022, and also seeking
certain declarations; and other directions to reconsider the offer
made by the petitioners.
13. In fact, in W.P.(C) No. 1084 of 2022, a statement is filed
by the Hindustan Petroleum Corporation Ltd. refuting the claims and
demands raised by the petitioners and inter alia stating that the
trucks offered by the petitioners were engaged by the Hindustan
Petroleum Corporation Ltd. for transportation of packed LPG By road
from Kochi LPG Bottling Plant and Annexure R1(a) contract dated
12.09.2018 is entered into by the company with M/s. Ponmankal
Transports. It is also pointed out that clause 5(iii) of the said
contract dated 12.09.2018 clearly provides that if the trucks are to
be withdrawn by the transporter, then prior permission ought to be
sought from HPCL justifying the need for such withdrawal.
14. It is also evident that as per clause 18 of Exhibit R1(a)
contract dated 12.09.2018, the trucks were contracted with
Hindustan Petroleum Corporation Ltd. for 5 years from 01.09.2018
i.e., till 01.09.2023. It is also submitted that the Hindustan
Petroleum Corporation Ltd. had an option to extend the contract for
a further period of one year. Therefore, it is submitted that the
Hindustan Petroleum Corporation Ltd. came to know that 4 out of
the 6 trucks which were contracted to Hindustan Petroleum
Corporation Ltd. by M/s. Ponmankal Transports, were being offered
to M/S Bharat Petroleum Corporation Ltd., even though the
contracts had not expired; which was also done without taking
prior permission of Hindustan Petroleum Corporation Ltd. as was
stipulated in the contracts. The sum and substance of the
contention advanced by the Hindustan Petroleum Corporation Ltd. is
that the contracts were illegally withdrawn by the contractor and it
was on account of the same that Hindustan Petroleum Corporation
Ltd. informed the BPCL that these trucks are still under contract
with Hindustan Petroleum Corporation Ltd. and had every right to
decline NOC.
15. It is evident from Annexure I attached to Exhibit R1(a)
that five trucks offered by the petitioners were belonging to one
Babu P.J, Managing Partner of Ponmankal Transport, who is arrayed
as 4th respondent in the writ petition. In fact, the said Sri. Babu P.J,
respondent No.4, has filed a counter affidavit stating that he has
sold the trucks since he had suffered acute financial crisis.
16. In W.P.(C) No. 7174 of 2022, the officials of M/S Bharat
Petroleum Corporation Ltd. has filed a statement inter alia stating
that the offers were invited from the existing transport contractors;
but, the petitioners have offered 4 trucks which were under contract
with Hindustan Petroleum Corporation Ltd. and as per clauses 8 (h)
and (i) of the Standard Terms and Conditions of the subject tender,
the trucks which were under contract with any other Public Sector
Undertakings (PSU), Oil Marketing Company etc. could not be
offered without NOC from the said OMC. It was accordingly that
Bharat Petroleum Corporation Ltd. addressed one of the petitioners
to submit NOC from Hindustan Petroleum Corporation Ltd.
17. It is further pointed out that the rationale and purpose
behind mandating that a truck already under contract with another
PSU or OMC ought not to be permitted to participate without
obtaining a NOC, is with an intention to ensure transparency in
supplying LPG to the public, and is in the larger public interest. It is
further submitted that it is on account of the prohibitory clauses
referred to above that the requirements of securing NOC from
another OMC is insisted upon. It is further submitted that a
transporter which is in the 4th year of its 5 year contract with an
OMC withdraws/sells the truck and offers the truck for a different
tender to obtain a fresh 5 year contract; such action of
transporters, if left unchecked, will jeopardize the entire LPG
distribution system and cause adversity to the public. It is also
stated that all LPG packed Cylinder Trucks have a closed cage for
safe carrying of LPG cylinders, and getting similar other LPG Packed
Cylinder Trucks from the open market is difficult, which could result
in immediate cylinder shortages to the public. Therefore, the BPCL
seeks dismissal of the writ petition.
18. Hindustan Petroleum Corporation Ltd. has also filed a
counter affidavit in some of the writ petitions basically supporting
the contentions advanced by M/S Bharat Petroleum Corporation Ltd.
19. Therefore, the basic and common issue in the writ
petitions is whether the tank trucks under contract with the
Hindustan Petroleum Corporation Ltd. for a period of five years from
01.09.2018, when sold to the petitioners could be offered for
transportation contracts invited from the existing contractors and
open market, by the BPCL.
20. I have heard, learned Senior Counsel for the petitioner
Sri. Kurian George Kannanthanam assisted by Adv. Thomas George
and the learned counsel appearing for the Oil Marketing Companies
Sri. M. Gopikrishnan Nambiar and Smt. Ramola Nayampilly, and
perused the pleadings and material on record.
21. The paramount contention advanced by the petitioners is
that there is no condition in the Tender Inviting Notices issued by
the Bharat Petroleum Corporation Ltd. that a 'No Objection
Certificate' has to be secured from other Oil Marketing Companies.
It is also contended that the Bharat Petroleum Corporation Ltd. is
not entitled to raise an objection with respect to the trucks which
were engaged by the previous contractor with another Oil Marketing
Company after the trucks are sold and tenders are invited from the
open market.
22. That apart, it is contended that the petitioners have
become absolute owners on purchase of the vehicles and therefore,
the action of the Bharat Petroleum Corporation Ltd. insisting for
NOC from Hindustan Petroleum Corporation Ltd. for the tank trucks
in question is infringement of fundamental rights guaranteed under
Articles 14 and 19(i)(g) of the Constitution of India.
23. On the other hand, the BPCL contends that insistence is
made by the company on account of the specific conditions
contained under the General Conditions of Contract namely Clauses
8(h) and (i), which read thus:
h) No truck will be offered under this tender which is presently in
contract with other locations of BPCL or any other PSU Oil company.
In case, it is detected at any stage that these trucks are in any of the
contracts, BPCL reserves its right to reject/ terminate the tender/
contract.
i) However, in case any truck(s), which are currently in contract with
other locations of BPCL or other PSU Oil companies, are offered by
the tenderers in the tender, No objection Certificate from the
concerned Region or other PSU Oil companies should be attached
with the credential bid. Date of issuance of NOC should be for this
particular tender, subsequent to the date of floating of the tender
and before the closing date of the tender.
24. Therefore, according to the BPCL, irrespective of whether
the tank trucks were purchased by the petitioners or not, since it
was on a contract with HPCL, as per the terms and conditions of the
contract, NOC had to be secured from HPCL. It is also contended
that such an insistence is made in the General Conditions of
Contract for the basic reason that if the trucks which are under
contract with other oil Marketing Companies are engaged, that
would interfere with the smooth supply of LPG cylinders by the
other company. It is also contended that insistence for an NOC is a
term of Notice Inviting Tender, since the General Conditions of
Contract are applicable to all the contracts invited by the BPCL and
therefore, the petitioners cannot contend that there is no
arbitrariness or violation of the fundamental rights guaranteed
under the Constitution of India. It is further submitted that the
petitioners are also not entitled to seek equity, since the petitioners
participated in the tender knowing fully well that while offering the
tank trucks under contract with other oil companies, as per the
tender invited by the BPCL, NOC has to be secured.
25. In the said writ petitions, the contesting respondent i.e.,
Bharat Petroleum Corporation Ltd. has a case that this Court is
lacking territorial jurisdiction, since, insofar as W.P.(C) Nos. 1084,
7174 and 11803 of 2022 are concerned, the notification inviting
tenders were issued by the Territory Manager of the Coimbatore
LPG Bottling Plant from the existing tank truck contractors attached
to Coimbatore/Kochi/Trivandrum/Chennai/Tuticorin/Tanjore/
Mangalore/Bangalore LPG plants for providing additional box trucks
at Coimbatore LPG plant, i.e., within the territorial jurisdiction of
the Madras High Court.
26. The learned Senior Counsel for the petitioner submitted
that since the area of operation of providing additional box trucks
includes certain parts of Kerala, there is ample jurisdiction for this
Court to consider the said writ petitions.
27. On the other hand, the learned counsel appearing for the
Oil Companies submitted that the entire cause of action relating to
the tender notification has arisen at Coimbatore within the territorial
limits of the Madras High Court.
28. In that regard, learned counsel for the Oil Companies
has invited my attention to a few of the judgments of the Apex
Court:
In ONGC v. Utpal Kumar Basu, (1994) 4 SCC 711], the
Apex Court had occasion to consider the territorial jurisdiction vis-a-
vis the cause of action wholly or in part arises, and it is held that
the said question has to be decided on facts pleaded in the petition
disregarding truth or otherwise thereof and the facts must form
integral part of the cause of action. That apart, the meaning of the
term 'cause of action' was considered and it is held that mere fact
that the petitioner company, having its registered office at Calcutta,
had read in Calcutta Newspaper the ONGC's advertisement inviting
tenders at Delhi for works to be executed in Gujarat and in
response the petitioner sent its tender to the Delhi address from
Calcutta and also made representations from Calcutta against non-
consideration of its officer on ground of its ineligibility because of its
failure to fulfil the experience criterion, that would not constitute
integral part of the cause of action. Relevant portion of the said
judgment reads thus:
"5. Clause (1) of Article 226 begins with a non obstante clause --
notwithstanding anything in Article 32 -- and provides that every High
Court shall have power "throughout the territories in relation to which
it exercises jurisdiction", to issue to any person or authority, including
in appropriate cases, any Government, "within those territories"
directions, orders or writs, for the enforcement of any of the rights
conferred by Part III or for any other purpose. Under clause (2) of
Article 226 the High Court may exercise its power conferred by clause
(1) if the cause of action, wholly or in part, had arisen within the
territory over which it exercises jurisdiction, notwithstanding that the
seat of such Government or authority or the residence of such person
is not within those territories. On a plain reading of the aforesaid two
clauses of Article 226 of the Constitution it becomes clear that a High
Court can exercise the power to issue directions, orders or writs for the
enforcement of any of the fundamental rights conferred by Part III of
the Constitution or for any other purpose if the cause of action, wholly
or in part, had arisen within the territories in relation to which it
exercises jurisdiction, notwithstanding that the seat of the
Government or authority or the residence of the person against whom
the direction, order or writ is issued is not within the said territories. In
order to confer jurisdiction on the High Court of Calcutta, NICCO must
show that at least a part of the cause of action had arisen within the
territorial jurisdiction of that Court. That is at best its case in the writ
petition.
6. It is well settled that the expression "cause of action" means
that bundle of facts which the petitioner must prove, if traversed, to
entitle him to a judgment in his favour by the Court. In Chand Kour v.
Partab Singh [ILR (1889) 16 Cal 98, 102 : 15 IA 156] Lord Watson said:
"... the cause of action has no relation whatever to the
defence which may be set up by the defendant, nor
does it depend upon the character of the relief prayed
for by the plaintiff. It refers entirely to the ground set
forth in the plaint as the cause of action, or, in other
words, to the media upon which the plaintiff asks the
Court to arrive at a conclusion in his favour."
Therefore, in determining the objection of lack of territorial
jurisdiction the court must take all the facts pleaded in support of the
cause of action into consideration albeit without embarking upon an
enquiry as to the correctness or otherwise of the said facts. In other
words the question whether a High Court has territorial jurisdiction to
entertain a writ petition must be answered on the basis of the
averments made in the petition, the truth or otherwise whereof being
immaterial. To put it differently, the question of territorial jurisdiction
must be decided on the facts pleaded in the petition. Therefore, the
question whether in the instant case the Calcutta High Court had
jurisdiction to entertain and decide the writ petition in question even
on the facts alleged must depend upon whether the averments made
in paragraphs 5, 7, 18, 22, 26 and 43 are sufficient in law to establish
that a part of the cause of action had arisen within the jurisdiction of
the Calcutta High Court.
8. From the facts pleaded in the writ petition, it is clear that NICCO
invoked the jurisdiction of the Calcutta High Court on the plea that a
part of the cause of action had arisen within its territorial jurisdiction.
According to NICCO, it became aware of the contract proposed to be
given by ONGC on reading the advertisement which appeared in the
Times of India at Calcutta. In response thereto, it submitted its bid or
tender from its Calcutta office and revised the rates subsequently.
When it learnt that it was considered ineligible it sent representations,
including fax messages, to EIL, ONGC, etc., at New Delhi, demanding
justice. As stated earlier, the Steering Committee finally rejected the
offer of NICCO and awarded the contract to CIMMCO at New Delhi on
27-1-1993. Therefore, broadly speaking, NICCO claims that a part of
the cause of action arose within the jurisdiction of the Calcutta High
Court because it became aware of the advertisement in Calcutta, it
submitted its bid or tender from Calcutta and made representations
demanding justice from Calcutta on learning about the rejection of its
offer. The advertisement itself mentioned that the tenders should be
submitted to EIL at New Delhi; that those would be scrutinised at New
Delhi and that a final decision whether or not to award the contract to
the tenderer would be taken at New Delhi. Of course, the execution of
the contract work was to be carried out at Hazira in Gujarat.
Therefore, merely because it read the advertisement at Calcutta and
submitted the offer from Calcutta and made representations from
Calcutta would not, in our opinion, constitute facts forming an
integral part of the cause of action. So also the mere fact that it sent
fax messages from Calcutta and received a reply thereto at Calcutta
would not constitute an integral part of the cause of action. Besides
the fax message of 15-1-1993, cannot be construed as conveying
rejection of the offer as that fact occurred on 27-1-1993. We are,
therefore, of the opinion that even if the averments in the writ
petition are taken as true, it cannot be said that a part of the cause of
action arose within the jurisdiction of the Calcutta High Court.
12. Pointing out that after the issuance of the notification by the
State Government under Section 52(1) of the Act, the notified land
became vested in the State Government free from all encumbrances
and hence it was not necessary for the respondents to plead the
service of notice under Section 52(2) for the grant of an appropriate
direction or order under Article 226 for quashing the notification
acquiring the land. This Court, therefore, held that no part of the
cause of action arose within the jurisdiction of the Calcutta High
Court. This Court deeply regretted and deprecated the practice
prevalent in the High Court of exercising jurisdiction and passing
interlocutory orders in matters where it lacked territorial jurisdiction.
Notwithstanding the strong observations made by this Court in the
aforesaid decision and in the earlier decisions referred to therein, we
are distressed that the High Court of Calcutta persists in exercising
jurisdiction even in cases where no part of the cause of action arose
within its territorial jurisdiction. It is indeed a great pity that one of
the premier High Courts of the country should appear to have
developed a tendency to assume jurisdiction on the sole ground that
the petitioner before it resides in or carries on business from a
registered office in the State of West Bengal. We feel all the more
pained that notwithstanding the observations of this Court made
time and again, some of the learned Judges continue to betray that
tendency. Only recently while disposing of appeals arising out of SLP
Nos. 10065-66 of 1993, Aligarh Muslim University v. Vinay
Engineering Enterprises (P) Ltd. [(1994) 4 SCC 710] , this Court
observed:
"We are surprised, not a little, that the High Court of Calcutta should
have exercised jurisdiction in a case where it had absolutely no
jurisdiction."
In that case, the contract in question was executed at Aligarh, the
construction work was to be carried out at Aligarh, the contracts
provided that in the event of dispute the Aligarh court alone will have
jurisdiction, the arbitrator was appointed at Aligarh and was to
function at Aligarh and yet merely because the respondent was a
Calcutta-based firm, it instituted proceedings in the Calcutta High
Court and the High Court exercised jurisdiction where it had none
whatsoever. It must be remembered that the image and prestige of a
court depends on how the members of that institution conduct
themselves. If an impression gains ground that even in cases which fall
outside the territorial jurisdiction of the court, certain members of the
court would be willing to exercise jurisdiction on the plea that some
event, however trivial and unconnected with the cause of action had
occurred within the jurisdiction of the said court, litigants would seek
to abuse the process by carrying the cause before such members giving
rise to avoidable suspicion. That would lower the dignity of the
institution and put the entire system to ridicule. We are greatly pained
to say so but if we do not strongly deprecate the growing tendency we
will, we are afraid, be failing in our duty to the institution and the
system of administration of justice. We do hope that we will not have
another occasion to deal with such a situation.
29. In Union of India and others v. Adani Exports Ltd.
and another [(2002) 1 SCC 567], it was held as follows at
paragraphs 6 and 7 thus:
6. For deciding the above issue, it is necessary to first notice the
contentions raised in the special civil applications to establish the
territorial jurisdiction of the High Court. Contentions regarding the
cause of action and the territorial jurisdiction of the High Court are
pleaded in the applications at para 16, which read thus:
"The petitioners carry on business of export and import from
Ahmedabad. The orders for export and import are placed from and
executed from Ahmedabad. The documents and payments for exports
and imports are sent/made at Ahmedabad. The credit of duty claimed
in respect of exports were handled from Ahmedabad since export
orders were received at Ahmedabad and payments also received at
Ahmedabad. The non-granting and denial of utilisation of the credit
in the said passbook shall affect the business of the petitioners at
Ahmedabad. Respondents 1 to 3 have regional offices at Ahmedabad.
A substantial part of the cause of action has arisen within the
jurisdiction of this Hon'ble Court. This Hon'ble Court has therefore,
jurisdiction to entertain, try and dispose of this petition."
7. The appellants herein while opposing the civil applications had
specifically pleaded that the courts at Ahmedabad did not have the
territorial jurisdiction to adjudicate upon the claims of the
respondents since no part of the cause of action has arisen within the
territorial jurisdiction of the High Court at Ahmedabad. In their
statement of objection rebutting the pleadings of the respondents,
the appellants had contended thus:
"With reference to para 16 of the petition, I say that since the
passbook licence was issued at Chennai by the designated
authority at Chennai and the transactions concerning the said
passbook were made from Chennai Port and cause of action is
lying at Chennai, it is in order that the case is transferred to the
jurisdiction of the Hon'ble High Court of Madras at Chennai
notwithstanding the petitioners having their office at Ahmedabad
from where the export-import planning work was being
executed."
Therein, the Apex Court had considered the question of territorial
jurisdiction taking into account the nature of facts which give rise to
part of cause of action within the territorial jurisdiction of a High
Court.
30. In Alchemist Ltd. And another v. State Bank of
Sikkim and others [(2007) 11 SCC 335], the Apex Court
considered the question of territorial jurisdiction taking into account
the amendment of Article 226 in the year 1963 and accordingly,
held that accrual of cause of action was made an additional ground
to confer jurisdiction on High Court under Article 226 of the
Constitution of India. Para 37 of the said judgment is relevant and
it reads thus:
"37. From the aforesaid discussion and keeping in view the ratio laid
down in a catena of decisions by this Court, it is clear that for the
purpose of deciding whether facts averred by the appellant-
petitioner would or would not constitute a part of cause of action,
one has to consider whether such fact constitutes a material,
essential, or integral part of the cause of action. It is no doubt true
that even if a small fraction of the cause of action arises within the
jurisdiction of the court, the court would have territorial jurisdiction
to entertain the suit/petition. Nevertheless it must be a "part of
cause of action", nothing less than that."
31. Therefore, the question to be considered is, whether
merely because the BPCL has an office at Kochi or other parts of
Kerala and also the tender for additional box trucks are invited for
the supply of the LPG cylinders in some parts of Kerala, the same
would confer any jurisdiction on this Court. It is quite clear and
evident from the facts and circumstances and the pleadings made
by the parties that the tender was invited from Coimbatore; the bid
documents are processed at Coimbatore; the validity of bid
documents are to be done by the Territory Manager at Coimbatore;
and a final decision to be taken with respect to the qualification of
the bidders is also at Coimbatore, all within the territorial
jurisdiction of the Madras High Court.
32. Therefore, in my considered opinion, the entire cause of
action with respect to the issues raised by the petitioners took place
within the limits of the Territory Manager of the Bharat Petroleum
Corporation Ltd. at Coimbatore; and therefore at this point of time,
there is no cause of action within State of Kerala so as to invoke the
territorial jurisdiction of the High Court of Kerala.
33. As I have pointed out above, insofar as W.P.(C) Nos.
1084 of 2022 and 7174 of 2022 are concerned, the learned Senior
Counsel has fairly submitted that the contract period is over and
therefore, the said writ petitions have virtually become infructuous.
But, statements are filed by the Oil Corporations and the documents
are produced in those writ petitions and for the limited purpose of
reference alone, the said writ petitions are referred to. But, I hold
that those three writ petitions lack territorial jurisdiction.
34. Insofar as W.P.(C) Nos. 33647 and 39729 of 2022 are
concerned, the issue relates to the non-acceptance of the tender
offered by the petitioners therein for transportation of the packed
LPG cylinders Ex-BPC, Kochi and PMC Bottling Plants M/s. Malabar
Fuel Corporation, Kannur and M/s. M.K. Gas Tech, Palakkad and the
tenders are opened at BPCL LPG Bottling Plant, Kochi Refinery,
Ambalamugal, Kerala. Ext. P3 is the Standard Terms and Conditions
of tender for transportation of filled and empty LPG cylinders.
35. Clauses 8(h) and (i) therein, which is extracted above,
make it clear that no truck will be offered under the tender which is
presently in contract with other locations of BPCL or any other PSU
Oil company. In case it is detected at any stage that these trucks
are in any of the contracts, BPCL reserves its right to reject/
terminate the tender/contract. It is also clear that in case any
truck(s), which are currently in contract with other locations of BPCL
or other PSU Oil companies, are offered by the tenderers in the
tender, 'No objection Certificate' from the concerned Region or
other PSU Oil companies should be attached with the credential bid,
and the date of issuance of NOC should be for this particular tender,
subsequent to the date of floating of the tender and before the
closing date of the tender.
36. On an analysis of the aforesaid General Conditions of
Contract, I find that the petitioners were well aware that there were
two clear radical conditions in order to satisfy the bid documents of
the petitioners. It is the admitted case of the petitioners that the
tank trucks offered by the petitioners were under contract with
HPCL. However, the case projected by the petitioners is that the
tank trucks were purchased by the petitioners and therefore, the
ownership of the trucks are transferred to them and consequent to
which the trucks are not in use of the HPCL. But, in my considered
opinion, clauses 8(h) and (i) of the General Conditions of contract
are the terms which are to be read into the notification invited for
tank trucks from transporters. Therefore, it was a mandatory
requirement that the tank trucks should not be in contract with the
other Public Sector Oil Companies.
37. Admittedly, as I have pointed out above, the trucks in
question were engaged for the supply of LPG cylinders of HPCL for a
period of 5 years from 1.09.2018, which terminates only on
01.09.2023. Therefore, no doubt, the terms of the General
Conditions of contract will definitely come into play. Therefore, the
only option available to the petitioners was to secure an NOC from
the HPCL. In fact, this was realized by the petitioner in W.P.(C) No.
33647 of 2022 and consequently, he has filed I.A. No. 1 of 2022
seeking a direction to the Regional Manager, HPCL, Cochin,
respondent No. 2, to take a decision on Ext.P5 representation dated
29.10.2022 made by the petitioner for grant of NOC; however, the
same was rejected by the HPCL which is under challenge in W.P.(c)
No. 39729 of 2022. HPCL has rejected the request made by the
petitioner holding as follows:
"We are disposing your representation as following:
● You both have no contractual relationship with HPCL and are
strangers as far as HPCL is concerned. We have provided personal
hearing on 23.11.2022 and disposing the representation through this
order as per the direction of the High Court of Kerala, and this
disposal order shall not be construed to infer that Mr. Bittu B Joseph
and Mr. Babu Joseph K has right to seek for such no objection from
HPCL since transport agreement were executed only with M/s
Ponmankal Transports represented by Mr. Babu P J as Sole
Proprietor.
● HPCL had issued a Letter of Acceptance (LOA) dated 10.08.2018 to
M/s Ponmankal Transports for transportation of packed LPG cylinders
ex. Kochi LPG Plant.
● Further to the LOA, HPCL had entered into a Transportation
Agreement with Mr. Babu PJ of M/s Ponmankal Transports on
12.09.2018 for the tank trucks KL05AR8283, KL05AR8285,
KLO5AR8287, KL05AR8289 and KLO5AR8292.
● The agreement is valid for a period of 5 years effective 01.09.2018.
HPCL also had an option to extend the contract for a further period
of I year.
● Annexure - I of the said agreement details the trucks deployed
exclusively under the contract, which are namely,
KLO5AR8283,
KLO5ARS285
KLO5ARS8287
KLO5ARS289 and
KLO5ARS292.
The said trucks were in the ownership of Mr. Babu P J of M/s Ponmankal
Transports as on the date of the Transportation Agreement (i.e.)
12.09.2018.
● Mr. Babu PJ of M/s Ponmankal Transports has not placed 4 tank
trucks for supply of products since Nov 2021 and has illegally
withdrew 4 trucks from the transportation fleet at Kochi LPG Plant
without giving replacement, against the agreement terms. As per
agreed clauses of the transport agreement executed with him, if the
transporter wishes to withdraw any tank truck provided under the
contract, prior permission should be sought from HPCL justifying the
need and HPCL may permit withdrawal provided alternate
arrangement is made by the transporter before withdrawal of the
concerned truck to maintain the continuity of the work. Hence, the
transporter cannot sell the tank trucks in contract with HPCL before
expiry of the contract and without giving any replacement and should
have sought prior permission. Also, HPCL came to know that Mr. Babu
PJ has sold above 4 trucks to Mr. Babu Joseph K, against the terms
and conditions of the said Transportation Agreement."
Therefore, one thing is categoric and clear that the petitioners have
not complied with the requirement of clause 8(i) and (h) of the
General Conditions of Contract.
38. Now, the question to be considered is, merely because
the tank trucks were purchased by the petitioners, are they entitled
to raise a contention that since the ownership of the trucks are with
them, the fundamental rights guaranteed under Part III of the
Constitution of India are violated. The specific contention advanced
by the learned Senior Counsel for the petitioners is that there is
violation of Articles 14 and 19(1) and (g) of the Constitution of
India. However, the specific contention advanced by the learned
Counsel for the Oil Companies is that the fundamental rights would
not come into play in a contractual matter of this nature, since it
was a specific term of the contract that the trucks offered by the
transporters shall not be under a contract with any other Oil
Marketing Company, and even if it is so a NOC should be obtained.
39. In this regard, the learned counsel for the respondents
has invited my attention to the judgment of the Apex Court in M/s.
Erusian Equipment & Chemicals Ltd. v. State of West Bengal
and another [(1975) 1 SCC 70], wherein the question considered
was with respect to the blacklisting done in Government Contracts
and the right to equality under Article 14 and the right of business
under Article 19(1)(g) of the Constitution of India. The relevant
portion of the judgment reads as follows:
"14. The State can enter into contract with any person it
chooses. No person has a fundamental right to insist that the
Government must enter into a contract with him.
40. In Association of Registration Plates v. Union of
India and others [(2005) 1 SCC 679], the Apex Court had
occasion to consider preconditions or qualifications for tenders and
the scope of judicial review, taking into account Articles 14, 19(1)
(g), 298, and 299 of the Constitution of India. The relevant
paragraphs of the said judgment read thus:
38. In the matter of formulating conditions of a tender
document and awarding a contract of the nature of
ensuring supply of high security registration plates,
greater latitude is required to be conceded to the State
authorities. Unless the action of tendering authority is
found to be malicious and a misuse of its statutory
powers, tender conditions are unassailable. On intensive
examination of tender conditions, we do not find that
they violate the equality clause under Article 14 or
encroach on fundamental rights of the class of intending
tenderers under Article 19 of the Constitution. On the
basis of the submissions made on behalf of the Union
and State authorities and the justification shown for the
terms of the impugned tender conditions, we do not find
that the clauses requiring experience in the field of
supplying registration plates in foreign countries and the
quantum of business turnover are intended only to keep
indigenous manufacturers out of the field. It is explained
that on the date of formulation of scheme in Rule 50 and
issuance of guidelines thereunder by the Central
Government, there were not many indigenous
manufacturers in India with technical and financial
capability to undertake the job of supply of such high
dimension, on a long-term basis and in a manner to
ensure safety and security which is the prime object to
be achieved by the introduction of new sophisticated
registration plates.
43. Certain preconditions or qualifications for tenders
have to be laid down to ensure that the contractor has
the capacity and the resources to successfully execute
the work. Article 14 of the Constitution prohibits the
Government from arbitrarily choosing a contractor at its
will and pleasure. It has to act reasonably, fairly and in
public interest in awarding contract. At the same time,
no person can claim a fundamental right to carry on
business with the Government. All that he can claim is
that in competing for the contract, he should not be
unfairly treated and discriminated, to the detriment of
public interest. Undisputedly, the legal position which
has been firmly established from various decisions of
this Court, cited at the Bar (supra) is that government
contracts are highly valuable assets and the court should
be prepared to enforce standards of fairness on the
Government in its dealings with tenderers and
contractors."
41. In Tata Cellular v. Union of India [(1994) 6 SCC 651],
it was held that judicial review of Government contracts was
permissible in order to prevent arbitrariness or favouritism. But,
considering the facts and the law, it was held that there may be
judicial restraint in administrative action; the court does not sit as a
court of appeal, but merely reviews the manner in which the
decision was made; the court does not have the expertise to correct
the administrative decision; and if a review of the administrative
decision is permitted, it will be substituting its own decision without
necessary expertise which itself may be fallible and the terms of the
invitation to tender not open to judicial scrutiny because the
invitation to tender is in the realm of contract.
42. In Raunaq International Ltd. v. I.V.R. Construction
Ltd., [(1999) 1 SCC 492], it was held that the superior court
should not interfere in the matters of tender, unless substantial
public interest is involved or the transaction was mala fide. The
same view was expressed by the Apex Court in Air India Ltd. v.
Cochin International Airport Ltd., [(2000) 2 SCC 617].
43. In Sterling Computers Ltd. v. M & N Publications
Ltd. [(1993) 1 SCC 445] it was held that while exercising the
power of judicial review, in respect of contracts entered into on
behalf of the State, the court is concerned primarily as to whether
there has been any infirmity in the 'decision-making process'.
44. Taking into consideration all the above judgments and
after making a deep-seated survey of other judgments of the Apex
Court, the Apex Court in Silpi Constructions Contractors v.
Union of India, (2020) 16 SCC 489] held thus:
"20. The essence of the law laid down in the judgments referred to
above is the exercise of restraint and caution; the need for
overwhelming public interest to justify judicial intervention in
matters of contract involving the State instrumentalities; the
courts should give way to the opinion of the experts unless the
decision is totally arbitrary or unreasonable; the court does not sit
like a court of appeal over the appropriate authority; the court
must realise that the authority floating the tender is the best judge
of its requirements and, therefore, the court's interference should
be minimal. The authority which floats the contract or tender, and
has authored the tender documents is the best judge as to how the
documents have to be interpreted. If two interpretations are
possible then the interpretation of the author must be accepted.
The courts will only interfere to prevent arbitrariness, irrationality,
bias, mala fides or perversity. With this approach in mind we shall
deal with the present case."
45. In Uflex Ltd. v. State of T.N., (2022) 1 SCC 165], the
Apex Court had considered the scope of formation of Government
contracts and it is held that the judicial review of such contractual
matters has its own limitations and judicial review is intended to
prevent arbitrariness, irrationality, unreasonableness, bias and mala
fides. After considering the gamut of the issues, it is held as
follows:
"Conclusion
42. We must begin by noticing that we are examining the case, as
already stated above, on the parameters discussed at the inception.
In commercial tender matters there is obviously an aspect of
commercial competitiveness. For every succeeding party who gets a
tender there may be a couple or more parties who are not awarded
the tender as there can be only one L-1. The question is should the
judicial process be resorted to for downplaying the freedom which a
tendering party has, merely because it is a State or a public
authority, making the said process even more cumbersome. We have
already noted that element of transparency is always required in
such tenders because of the nature of economic activity carried on
by the State, but the contours under which they are to be examined
are restricted as set out in Tata Cellular [Tata Cellular v. Union of
India, (1994) 6 SCC 651] and other cases. The objective is not to make
the Court an appellate authority for scrutinising as to whom the
tender should be awarded. Economics must be permitted to play its
role for which the tendering authority knows best as to what is
suited in terms of technology and price for them."
46. The General terms and Conditions in the instant contract
makes it clear that the BPCL had definite and clear specifications
with respect to the tank trucks to be offered by the transporters.
The petitioners have participated in the contract with open eyes and
knowing the terms and conditions of the contract fully well, and
therefore, they are not entitled to turn around and attack the terms
and conditions of the contract stating that the trucks engaged by a
contractor with the HPCL was purchased by them, and since the
ownership of the vehicles have changed, the requirements so
contained in the General Conditions of contract have no validity.
47. Taking into account the principles of law evolved by the
Apex Court and correlating the same with the facts and
circumstances in these writ petitions, I am of the clear opinion that
the petitioners have not made out any case of mala fides, patent
illegality, arbitrariness or other irregularities, justifiable to be
interfered with, in a proceeding under Article 226 of the Constitution
of India.
Resultantly, writ petitions fail and accordingly, they are
dismissed.
sd/- SHAJI P. CHALY, JUDGE.
Rv
APPENDIX OF WP(C) 1084/2022
PETITIONERS' EXHIBITS:
Exhibit P1 TRUE COPY OF THE NOTICE
NO.BPCL/LPG/PKD/SR/2015-16/03 DATED 16.11.2021
ISSUED BY THE 2ND RESPONDENT.
Exhibit P2 TRUE COPY OF THE LETTER DATED 20.11.2021 FROM
THE 1ST PETITIONER TO THE 2ND RESPONDENT.
Exhibit P3 TRUE COPY OF THE AFFIDAVIT SUBMITTED BY THE
2ND PETITIONER TO THE 2ND RESPONDENT.
Exhibit P4 TRUE COPY OF THE LETTER DATED 20.11.2021 FROM
THE 2ND PETITIONER TO THE 2ND RESPONDENT.
Exhibit P5 TRUE COPY OF THE LETTER DATED 31.12.2021 FROM
THE PLANT MANAGER, BPCL COIMBATORE LPG
TERRITORY.
Exhibit P6 COPY OF THE LETTER OF ACCEPTANCE DATED
10.08.2018 FROM THE HINDUSTAN PETROLEUM
CORPORATION LTD.
Exhibit P7 TRUE COPY OF THE PUBLIC NOTICE DATED 8/2/2022
ISSUED BY THE REGIONAL MANAGER (SOUTH)
BHARAT PETROLEUM CORPORATION LTD.
RESPONDENTS' EXHIBITS:
ANNEXURE R2(a): TRUE COPY OF THE RELEVANT PAGES OF "TENDER
NO.BPCL/LPG/PKD/SR/2015-16/03/COIMBATORE" DATED NIL.
ANNEXURE R1(a): TRUE COPY OF THE CONTRACT DATED 12.09.2018 ENTERED
INTO BETWEEN HPCL AND PONMANKAL TRANSPORTS.
True Copy
PS To Judge.
rv
APPENDIX OF WP(C) 7174/2022
PETITIONER'S EXHIBITS:
Exhibit P1 TRUE COPY OF THE NOTICE NO
BPCL/LPG/PKD/SR/2015-16/03 DATED 16-11-2021
ISSUED BY THE 2ND RESPONDENT
Exhibit P2 TRUE COPY OF THE LETTER DATED 20-11-2021 FROM
BIJU MATHEW TO THE 3RD RESPONDENT
Exhibit P3 TRUE COPY OF THE AFFIDAVIT SUBMITTED BY THE
PETITIONER TO THE 3RD RESPONDENT
Exhibit P4 TRUE COPY OF THE LETTER DATED 20-11-2021 FROM
THE PETITIONER TO THE 3RD RESPONDENT
Exhibit P5 TRUE COPY OF THE LETTER DATED 31-12-2021 FROM
THE PLAINT MANAGER, BPCL COIMBATORE LPG
TERRITORY
Exhibit P6 COPY OF THE LETTER OF ACCEPTANCE DATED 10-08-
2018 FROM THE HINDUSTAN PETROLEUM
CORPORATION LTD.
Exhibit P7 TRUE COPY OF THE PUBLIC NOTICE DATED 8-2-2022
ISSUED BY THE REGIONAL LPG MANAGER, BHARAT
PETROLEUM CORPORATION.
Exhibit P8 TRUE COPY OF THE RELEVANT PAGES OF TENDER NIT
NO BPCL/LPG/PKD/SR/2015-16/03/COIMBATORE
DATED NIL.
Exhibit P9 COPY OF THE R.C BOOK OF THE PETITIONER.
Exhibit P10 TRUE COPY OF THE PERMIT DATED 11-12-2021 IN
RESPECT OF GOODS PERMIT (GOODS CARRIAGE
(OTHERS) STATE PERMIT) ISSUED TO ONE OF THE
TRUCKS OFFERED BY THE PETITIONER.
EXHIBIT P11 TRUE COPY OF THE LETTER DATED 15.03.2022 BY THE
THIRD RESPONDENT TO THE PETITIONER.
RESPONDENTS' EXHIBITS:
TRUE COPY OF THE EMAIL DATED 04.12.2021
ANNEXURE R2(a): ADDRESSED BY BPCL TO MR. BIJU MATHEW.
ANNEXURE R2(b) TRUE COPY OF THE LETTER DATED 04.03.2022
ADDRESSED BY BPCL TO THE PETITIONER.
ANNEXURE R2(c) TRUE COPY OF THE UNDERTAKING DATED NIL FILED
BY THE PETITIONER ALONG WITH HIS TENDER
APPLICATION.
True Copy
PS To Judge.
rv
APPENDIX OF WP(C) 11803/2022
PETITIONER'S EXHIBITS:
Exhibit P1 TRUE COPY OF THE NOTICE NO
BPCL/LPG/PKD/SR/2015-16/03 DATED 16-11-2021
ISSUED BY THE 3RD RESPONDENT
Exhibit P2 TRUE COPY OF THE LETTER DATED 20-11-2021 FROM
ONE BIJU MATHEW TO THE 3RD RESPONDENT
Exhibit P3 TRUE COPY OF THE AFFIDAVIT SUBMITTED BY THE
PETITIONER TO THE 3RD RESPONDENT
Exhibit P4 TRUE COPY OF THE LETTER DATED 20-11-2021 FROM
THE PETITIONER TO THE 3RD RESPONDENT
Exhibit P5 TRUE COPY OF THE E-MAIL DATED 31-12-2021
RECEIVED BY THE PETITIONER.
Exhibit P6 COPY OF THE RELEVANT PAGES OF TENDER NIT NO.
BPCL/LPG/PKD/SR/2015-16/03/ COIMBATORE DATED
NIL
Exhibit P7 TRUE COPY OF THE PUBLIC NOTICE DATED 8-2-2022
ISSUED BY THE REGIONAL LPG MANAGER, BHARAT
PETROLEUM CORPORATION.
Exhibit P8 TRUE COPY OF THE R.C BOOK OF THE PETITIONER.
Exhibit P9 TRUE COPY OF THE LETTER DATED 4-3-2022 ISSUED
BY THE 3RD RESPONDENT.
Exhibit P10 TRUE COPY OF THE LETTER DATED 15-03-2022 BY
THE 3RD RESPONDENT TO THE PETITIONER.
RESPONDENTS' EXHIBITS: NIL
True Copy
PS To Judge.
rv
APPENDIX OF WP(C) 33647/2022
PETITIONER'S EXHIBITS:
Exhibit P1 TRUE COPY OF THE RC BOOK OF THE PETITIONERS
FATHER.
Exhibit P2 TRUE COPY OF THE NOTICE INVITING TENDERS
ALONG WITH ANNEXURE-A
Exhibit P3 TRUE COPY OF THE INVITATION OF TENDER
STANDARD TERMS AND CONDITIONS OF TENDER FOR
TRANSPORTATION OF FILLED AND EMPTY LPG
CYLINDERS.
Exhibit P4 TRUE COPY OF THE AFFIDAVIT DATED 20.10.2022 BY
THE PETITIONERS FATHER.
Exhibit P5 COPY OF REPRESENTATION DATED 29-10-2022 TO
PLANT MANGER, HP GAS, IRUMPANAM.
RESPONDENTS' EXHIBITS: NIL
True Copy
PS To Judge.
rv
APPENDIX OF WP(C) 39729/2022
PETITIONERS' EXHIBITS:
Exhibit P1 TRUE COPY OF THE NOTICE INVITING TENDERS
ALONG WITH ANNEXURE-A.
Exhibit P2 TRUE COPY OF THE INVITATION OF TENDER
STANDARD TERMS AND CONDITIONS OF TENDER FOR
TRANSPORTATION OF FILLED AND EMPTY LPG
CYLINDERS.
Exhibit P3 TRUE COPY OF THE AFFIDAVIT DATED 20-10-2022 BY
THE PETITIONER'S FATHER.
Exhibit P4 TRUE COPY OF THE REPRESENTATION DATED 29-10-
2022 ISSUED FROM THE 1ST PETITIONER.
Exhibit P5 TRUE COPY OF THE ORDER DATED 10-11-2022 IN
WP(C)NO. 33647/2022 OF THIS HON. COURT.
Exhibit P6 TRUE COPY OF THE COMMUNICATION DATED 28-11-
2022 ISSUED TO THE PETITIONERS.
RESPONDENTS' EXHIBITS: NIL
True Copy
PS To Judge.
rv
