Deepak Saini vs Bharat Petroleum Corporation
2023 Latest Caselaw 102 UK

 IN THE HIGH COURT OF UTTARAKHAND
             AT NAINITAL
                       Writ Petition No. 950 (MS) of 2020

Deepak Saini                                                   ......... Petitioner.

                           Versus
Bharat Petroleum Corporation
Limited and another.                                           ......Respondents



Mr. Subhash Upadhyaya, Advocate for the petitioner.
Mr. Mukesh Rawat, Advocate for the respondent nos. 1& 2.
Mr. Suyash Pant, learned Standing Counsel for the State/respondent no.3.




                 Date of Hearing and Judgment : 07.01.2023


Shri Sanjaya Kumar Mishra, J.

By filing of this writ petition, the petitioner has prayed for the following relief:

i) "Issue a writ, order in the nature of certiorari, quashing the impugned letters/orders dated 23-05-2020 and 12-06-2020 issued by the respondent no. 2, whereby the candidature of the petitioner has been rejected (Respectively contained as Annexure Nos. 8 and 9 to this writ petition).

ii) Issue a writ, order or direction in the nature of mandamus commanding / directing the respondent nos. 1 & 2 to commission the Retail Outlet of petitioner at proposed site i.e. in Khasra no. 1105/1685 at Village Jhabrera, Tehsil Roorkee, District Haridwar."

2. The facts of the case are not disputed in this case. They may be narrated in a chronological manner as hereunder:

On 25.11.2018, the respondent no.1. i.e. Bharat Petroleum Corporation Limited (hereinafter referred as BPCL) publish an advertisement inviting applications for grant of Retail Outlet Dealership of BPCL for the location between 17-25

kilometers on the State Highway-28, (Puhana Jhabrera Gurukul Narsan Road) , District Haridwar for the persons belonging to the Other Backward Class. The petitioner submitted an application in pursuance of the aforesaid advertisement. On 11.02.2019, the Assistant Engineer, Construction Division, PWD Roorkee issued a letter to the effect that the land offered by the petitioner situates between 17-25 kilometers of the aforesaid road.

3. On 09.03.2019, the land evaluation committee of BPCL visited the site and after satisfying itself the respondent no.2 issued the letter of intent in favour of the petitioner. In course of such visit the officials of BPCL satisfying themselves that the location of proposed Retail Outlet is suitable and installed the required assets (machineries etc.) at the proposed site. On 25.04.2019, the Executive Engineer, Construction Division, PWD Roorkee issued a No Objection Certificate, NOC, for establishment/construction of Retail Outlet Dealership of BPCL at the proposed site. The District Magistrate Haridwar issued the NOC to the petitioner.

4. On 13.06.2019, the Assistant Engineer, Construction Division, PWD Roorkee wrote a letter dated 13.06.2019 to the respondent no.2 apprising that the some places mile stones are missing, but at the time of advertisement for petrol pump at the concerned mile stones 17 kilometer was written, as well as the NOC was issued to the petitioner. Thus, the Assistant Engineer, Construction Division, PWD Roorkee, clarified that No Objection Certificate issued to the petitioner is correct. On 15.06.2019, the respondent no.2 issued a letter to stop further constructions of the petrol pump. Feeling aggrieved by the said order, the petitioner preferred a writ petition before this Court being WPMS No. 1829

of 2019. On 27.08.2019, a Coordinate Bench of this Court disposed of the same by passing the following order:

"7 One thing is apparent that the mile stone has been changed and the exact location of the site of the petitioner is not between 17 to 25 mile stone, but around 15 No. mile stone. This can be a deliberate attempt on the part of the petitioner, who along with certain officials including the officials of the Public Works Department has done this mischief. In case this is so, a serious action must be taken. However, in case the mile stone has been changed due to strengthening and widening of the road, the petitioner has nothing to do with that and minor dislocation of petrol pump within two kilometers will not affect the location.

8. In view thereof, writ petition is disposed of with the direction to the Chief Engineer, Public Works Department to conduct an inquiry in the matter. In case he finds that the petitioner has no role to play in displacement or dislocation of the mile stone he should issue fresh letter to the oil company, which shall be considered by the oil company in accordance with law. However, in case it is detected that mischief was done by the petitioner and he was in connivance of with the officials of Public Works Department, an appropriate action be taken against the petitioner as well as against the concerned officials of the Public Works Department. Let the inquiry be completed as expeditiously as possible but definitely within a period of three weeks from the date of production of a certified copy of this order."

5. Thus, by virtue of the observations made in paragraph 7 the only thing that is to be decided by the respondents is whether the mischief of tempering with the mile stone was drawn by the petitioner, in that case serious action should be taken against him. However, as the Court observed in case the mile stone has been changed due to strengthening and widening of the road, the petitioner has nothing to do with it and

the minor dislocation of petrol pump within two kilometers will not affect the location.

6. Pursuant to the aforesaid order passed by this Court, the Chief Engineer Public Works Department made an inquiry. The report of the said inquiry dated 18.10.2019, reveals that the Retail Outlet, established by the petitioner, is at 15.4 km, which is beyond the advertisement stretch. The said finding clearly indicates that the Retail Outlet established by the petitioner is beyond the advertised stretch with keeping in a hand further stated that in his report that some tempering/interpolation was done in the mile stone by changing the numbers. He has further stated that the mile stone Nos. 4, 17 and 25 are altogether missing. Thus, a perusal of the report in the Chief Engineer has expressed his opinion that foul play has been a committed by some miscreants, however, who has committed this foul play could not be ascertained in the absence of any evidence. This report of the Chief Engineer Public Works Department was sent to the BPCL but it did not take any decision, therefore, the petitioner approached this Court for the second time by filing WPMS No. 3416 of 2019, wherein a Coordinate Bench took into consideration all the aforesaid facts and directed that the respondent no.1 therein, who is the respondent no.2 herein, to consider the report dated 18.10.2019, of the Chief Engineer, Public Works Department and take an appropriate decision, in accordance with law, within a period of four weeks from the date of production of certified copy of the order. Thereafter, the respondent no.1 took a decision and rejected the application of the petitioner by holding as follows:

" In view/consideration of the above clauses and as the land is not found to be suitable/not meeting the criteria as set out in the advertised stretch, we regret to inform you that your candidature has been found ineligible and the LOI issued by us

for establishing the RO is withdrawn. However, your candidature may be get considered for selection in the following future event along with Group 3 applicants as per the applicable guidelines as under in brochure for Selection of Dealers for regular and Rural Retail Outlets - 2018 dated 24th Nov, 2018, Page No. 8."

7. Mr. Subhash Upadhyaya, the learned counsel appearing for the petitioner would submit that after two rounds of litigation the respondents have not taken a correct decision in view of the fact that there has been already an observation of a Coordinate Bench in the first writ application that if the petitioner is not found responsible for tempering with the mile stones, then action cannot be taken against him. In this case, the Chief Engineer, Public Works Department has categorically reported that though there are some tempering of the mile stones it could not be established that it was done by the petitioner and who has done is could not be asserted. Moreover, a Coordinate Bench in the very first application filed by the petitioner has observed that minor dislocation of 2 kilometers will not affect the location.

8. In that view of the matter, the action of the respondent in recalling the LOI issued in his favour appears to be contrary to the orders passed by this Court. Moreover, it is seen that once LOI is already issued the petitioner's land was verified by the officials machineries were installed after inquiring heavy cost that too incurred by the respondent themselves. An order refusing the relief claimed by the petitioner not only cause irreparable loss and inconvenience to the petitioner, but it will also cause financial loss and hardship to the respondent no.1.

9. In that view of the matter, this Court finds that the writ petition should be allowed. Accordingly, rule is made absolute. The impugned orders dated 23.05.2020, 12.06.2020 issued by respondent no.2 are hereby quashed by issuing a writ

of certiorari. A writ of mandamus is issued to the respondent nos.1 and 2 to commission the Retail Outlet of the petitioner standing on the plot stated above in the first paragraph.

10. Let the requisites be filed before the Registry to communicate this writs to the respondents.

(Sanjaya Kumar Mishra, J.) (Grant urgent certified copy of this judgment, as per Rules)

Nahid