1. In present petition under Article 226 of the Constitution of India the petitioner has prayed for below mentioned relief:
"7(a) Be pleased to issue a writ of certiorari or writ in the nature of certiorari or any other appropriate writ order or direction declaring that the decision making process in the matter of allotment of retail outlet for MS and HSD on the Sankheshwar to Sami road, [the item No.344 in the advertisement dated 18.09.2011] is arbitrary, violative of equality and being vitiated from the inception on account of abrupt change of route/location.
(b) Be further pleased to quash the Letter of Intent dated 19.03.2012, which is issued in furtherance of the arbitrary and defective selection process which is annexed at Annexure-C."
2. The relevant facts involved in and leading to present petition, as stated by the petitioner, are that the respondent Corporation had issued an advertisement somewhere in September 2011 inviting applications for allotment of retail outlet. The allotment was to be done for retail outlet to be situate at "Shankeshwar: Shankeshwar to Sami road
- 5 kilometers from Shankeshwar, District Patan".
2.1. In pursuance of the said advertisement, the proposed allotment was to be made to the persons who would qualify as per the eligibility condition and the criteria mentioned in the advertisement and the criteria prescribed and applicable according to the rules and guidelines of the respondent Corporation.
2.2. After completing the procedure of receiving and scrutinizing the applications and finalizing eligible applicants/candidates as per prescribed criteria, the respondent Corporation selected respondent no.3 as the eligible and successful applicant on the basis of the marks allotted to the applicants.
2.3. In pursuance of such selection the respondent Corporation has issued Letter of Intent dated 19.03.2012 in favour of the said respondent no.3.
2.4. After the entire process of selection got concluded and after the respondent Corporation issued Letter of Intent in favour of respondent no.3, the petitioner has now raised grievance and preferred present petition challenging the decision and action of the respondent Corporation alleging, inter alia, that the respondent Corporation has misconstrued and misapplied the conditions mentioned in its advertisement and the selection of respondent no.3 is arbitrary and contrary to the conditions mentioned in the advertisement.
3. In response to the Notice, the respondent No.1 - Corporation and the private respondent i.e. respondent no.3 have entered their appearance and resisted the petition by filing their respective reply affidavits.
3.1. The respondent No.1 has, in its affidavit, opposed the allegation made by the petitioner and it has claimed that the respondent Corporation has strictly applied all applicable terms and conditions including those mentioned in the advertisement and the respondent no.3 fulfilled prescribed conditions and after further scrutiny, the respondent no.3 was found eligible and that therefore the respondent Corporation has issued Letter of Intent in his favour.
3.2. The respondent Corporation has in its affidavit stated, inter alia, that:
"3. I state that no fundamental or legal right of the petitioner is infringed by any action of the answering respondent. I state that the Answering Respondent has issued an advertisement inviting applications for allotment of for proposed Retail Outlet at 'Shankheshwar: Shankheshwar to Sami Road 5 km. From Shankheshwar', District: Patan. I state that the in accordance with the advertisement the applicants were considered. I state that the plot of the Respondent No.3 was found to be suitable and meeting with the requirement of the Answering Respondent in terms of the advertisement. I state that the Answering Respondent has therefore issued the letter of intent in favour of Shri Ramanbhai Patel. I state that the decision is bonafide and in accordance with law. I state that the Petitioner has not participated in the selection process initiated pursuant to the advertisement. The petitioner having not submitted his application for consideration has no legal or fundamental right to insist for allotment of dealership in his favour. The writ petition under article 226 of the Constitution is therefore not maintainable in law.
4. I state that the principal objection raised in the present petition is that the land of the allottee does not fall on the road from Shankeshwar to Sami. I state that the objection is misconceived. I state that the land offered by Shri Rasikbhai Patel falls within Shankeshwar as per 7/12 revenue record submitted to us; and the said plot is by the side or road towards Sami, thereby fulfilling the requirement of our advertisement. The grievance of the petitioner is therefore misconceived and is required to be rejected as such."
4. The respondent No.3 has also filed affidavit and resisted the petition on diverse grounds including the objection against petitioner's locus to prefer present petition as well as the objection on the ground that the petition suffers from vice of suppression of relevant facts.
4.1. It is also alleged that the petition is motivated and misconceived.
4.2. The respondent No.3 has, inter alia, averred that:
"3. I say that the petition filed by the Petitioner under Article 226 of the Constitution of India is not maintainable, inasmuch as merely because, as admitted by the petitioner, though the petitioner was 'desirous to apply' by virtue of the said advertisement but has not so applied. I further say that merely because the petitioner has misunderstood the advertisement and therefore he did not apply pursuant to the said advertisement, cannot be a ground to approach this Hon'ble Court with a prayer that the Respondent 1 Corporation be directed to initiate fresh selection process for allotment of R.O. At Sankeshwar, particularly when pursuant to the said advertisement, by letter dated 19.03.2012, i.e. since five months, the allotment has already been made in my favour. I say that it is clear from reading the advertisement that the applications were invited for allotment of a petrol pump (R.O.)/selection of R.O. At Sankeshwar. It is needless to say that when the advertisement prescribed 'Sankeshwar', any man of ordinary prudence would understand that it is within the 5 kilometer peripheral limits of Sankheshwar. I say that any man of ordinary prudence would have understood the true spirit of the same and merely because the Petitioner did not properly understand the parameters of the advertisement, it is not proper and open of the Petitioner to make false and baseless allegations against my selection by stating that selection made by the respondent no.1 Corporation is by means of private negotiations or by way of favoritism or nepotism.
4. I further say that on the contrary, it is the Petitioner who has not come before this Hon'ble Court with clean hands inasmuch as the Petitioner himself is operating a Retail Outlet for petroleum products, of Hindustan Petroleum Corporation Limited, in partnership with his cousin brother Bharatbhai Arya, who is the President of Taluka Panchayat, Sami. I say that since the Petitioner is running an R.O. Of Hindustan Petroleum Corporation Limited, in partnership with his Cousin brother, all efforts are being made by the Petitioner to see that no other R.O. Within the vicinity of his R.O. Comes up. Thus, it is apparent that the petition is filed only with a motivated and malafide intention to thwart coming up of an R.O. Of Bharat Petroleum Corporation Limited (BPCL), merely because the Petitioner fears that there will be competition from the R.O. Of BPCL, the respondent no.1 herein. Before filing the petition, or even in the petition itself, nowhere the Petitioner has stated that the Petitioner is operating a R.O. Of HPCL in partnership with his cousin brother Bharatbhai Acharya Corporation for setting up an Retail Outlet at Sankeshwar. I say only on this account the Petitioner also did not apply pursuant to an advertisement issued by the Indian Oil Corporation. Therefore, the petition suffers from the vice of suppression veri and suggestio-falsi and hence the petition must be dismissed on the ground that the petition is motivated and misconceived. I further say that the petition is filed only after all the efforts of his cousin brother, in his capacity as President of Sami Taluka Panchayat, to exert substantial pressure on the revenue Officials of the concerned in granting requisite permissions consequent to the allotment of R.O. in my favour, have failed. It is because of this reason that, as an afterthought, the Petitioner has made an application to make the Collector as party, which, in my respectful submission, this Hon'ble Court rightly and correctly refused to accede to. I say that the respondent 1 Corporation has written a letter to me on 03.07.2012 justifying the allotment of R.O.in my favour. I beg to annex a copy of the said letter dated 3.7.2012 of the respondent no.1 Corporation addressed to me at ANNEXURE-R-1 to this affidavit in reply."
5. Mr.
Raval, learned counsel has appeared for the petitioner. Mr. Shelat, learned counsel has appeared for respondent no.1 Corporation and Mr.Vaishnav, learned counsel has appeared for private respondent i.e. respondent no.3.
6. The learned counsel for petitioner has placed on record layout plan and has claimed that the location of the land offered by respondent no.3 is not in tune with the conditions mentioned in the advertisement. The petitioner has claimed that according to the conditions mentioned in the advertisement, particularly the condition regarding the specified location of the proposed outlet, the respondent no.3 could not have been treated as eligible candidate or the candidate fulfilling the prescribed requirements and his candidature should have been rejected. On such contention the petitioner has taken out present petition. Mr. Raval, learned counsel for petitioner submitted, inter alia, that the location of the land offered by the respondent no.3 in response to the advertisement is not fulfilling the condition prescribed in the advertisement. He submitted that according to the advertisement the location of the proposed retail outlet is required to be within 5 kilometers from Shankeshwar on Shankeshwar-Sami road, whereas the location of the land offered by respondent no.3 for proposed outlet is not situate within 5 kilometers from Shankeshwar on Shankeshwar-Sami road and that therefore respondent no.3 could not have been considered eligible candidate. He submitted that the decision of the respondent No.1 Corporation considering respondent no.3 eligible candidate and accepting his candidature and allotting Letter of Intent in his favour is arbitrary and contrary to the condition in the advertisement and that therefore the same should be set aside. He made reference of the description/entry at serial No.344 in Annexure-A at page 32 (which is a photocopy of the advertisement issued by the respondent Corporation). According to the petitioner, in view of the description of the location, the land to be offered by the applicants for the said purpose must be only towards Sami from Shankeshwar and within 5 kilometers in the said direction. For justifying his contention the learned counsel for the petitioner would take center point of Shankeshwar and claim that the location of the land offered by the respondent no.3 is not within the said limit and in the said direction. Therefore, selection of respondent no.3 is bad in law and contrary to advertisement.
7. Learned counsel for the respondent Corporation has opposed the said contention. It is claimed that according to the respondent Corporation and according to the said advertisement, the location of the land was supposed to be within 5 kilometers from Shankeshwar. The respondent Corporation has, in its reply affidavit, stated that:
"I state that the Answering Respondent has issued an advertisement inviting applications for allotment of for proposed Retail Outlet at 'Shankheshwar: Shankheshwar to Sami Road 5 km. From Shankheshwar', District: Patan. I state that the in accordance with the advertisement the applicants were considered. I state that the plot of the Respondent No.3 was found to be suitable and meeting with the requirement of the Answering Respondent in terms of the advertisement. I state that the Answering Respondent has therefore issued the letter of intent in favour of Shri Ramanbhai Patel."
8. The respondent No.3 has, on this count, in his affidavit stated, inter alia, that:
"It is needless to say that when the advertisement prescribed 'Sankeshwar', any man of ordinary prudence would understand that it is within the 5 kilometer peripheral limits of Sankheshwar. I say that any man of ordinary prudence would have understood the true spirit of the same and merely because the Petitioner did not properly understand the parameters of the advertisement, it is not proper and open of the Petitioner to make false and baseless allegations............."
9. There are couple of aspects which are required to be taken into account before adverting to the petitioner's allegations.
10. At the outset, it is pertinent to note that the petitioner does not have locus to prefer present petition.
10.1.On this count, it is pertinent to note that the petitioner is not one of the applicants/candidates who applied in response to the advertisement.
10.2.When the petitioner did not even submit its bid in response to the advertisement and did not even participate in the selection process the petitioner is a complete stranger to the bidding/auction process and does not have any locus or right to challenge either the selection process or the decision of respondent Corporation of issuing Letter of Intent in favour of respondent No.3. Thus, present petition by the petitioner who did not even submit his bid is not maintainable and does not deserve to be entertained.
11. Besides this, it is also relevant to mention that only justification urged by the petitioner for taking out present petition is that upon reading the advertisement the petitioner derived particular meaning of the entry/description at serial No.344 and that therefore based on his own construction and understanding of the said entry No.344 he did not submit his bid, but when the Corporation issued Letter of Intent then the petitioner realized that the advertisement could have been read and understood and construed in such other manner as well and if the scope and meaning of the advertisement was as considered by the Corporation then he would have submitted his application. The petitioner would thus claim that he has been unjustifiably deprived of his right to submit his application and that is only because of the advertisement and its interpretation by the Corporation.
11.1.Thus, actually the purport of the petitioner's submission is that on account of his own understanding and reading of the advertisement he did not submit his application but the petitioner would claim that the interpretation by the Corporation is incorrect.
11.2.On such ground the petitioner cannot maintain petition and/or cannot assail the decision and action of the respondent Corporation of allotting Letter of Intent in favour of respondent No.3.
11.3.The respondent Corporation had never represented to the petitioner that meaning and scope of the advertisement is as understood by the petitioner. The petitioner on his own construed the advertisement in particular manner and did not submit his application.
12. The petitioner never inquired about the meaning and scope of the advertisement. The petitioner also did not submit any application on the premise that the said description/entry at serial No.344 could be read in manner different than the way in which he was reading or understanding the advertisement. However, without even submitting application and without participating in the selection process the petitioner is not justified in raising objection against the decision and action of respondent no.1 Corporation.
13. There is another reason also for which the petition does not deserve to be entertained viz. delay. The petitioner has come forward with the petition against the decision of respondent no.1 and action on or around 29.06.2012. The advertisement was issued in September 2011 and the Letter of Intent is said to have been issued on 19th March 2012. For calculating the period of delay in preferring petition, instead of September 2011 (when advertisement was issued) even if March 2012 (when Letter of Intent came to be issued) is taken into account, then also the petition is preferred after delay of almost 3 months, which in case of matters related to or arising from tender process or contracts pursuant to tender, is substantial delay (though in ordinary civil matters the said period may not amount to substantial delay), more particularly, when consequential actions pursuant to LOI are also taken by the concerned parties. The petition is, therefore, hit by vice of delay and therefore does not deserve to be entertained.
14. Another and rather more important reason exists in present case which is major hurdle and obstacle in the path of present petitioner. One of the fundamental conditions in the advertisement was that the applicant should not be an allottee in his individual capacity or should not be a partner of a partnership firm or part of other entity (e.g. association etc.) who is already allotted retail outlet by the respondent Corporation or any other Public Sector Undertaking.
14.1.The respondent No.3 has, in his affidavit, asserted, inter alia, that:
".......the Petitioner himself is operating a Retail Outlet for petroleum products, of Hindustan Petroleum Corporation Limited, in partnership with his cousin brother Bharatbhai Arya, who is the President of Taluka Panchayat......."
14.2.The respondent No.3 has further alleged and asserted that:
"........the Petitioner is running an R.O. Of Hindustan Petroleum Corporation Limited, in partnership with his Cousin brother, all efforts are being made by the Petitioner to see that no other R.O. Within the vicinity of his R.O. Comes......."
14.3.The respondent No.3 has also alleged that:
"............the petition is filed only with a motivated and malafide intention to thwart coming up of an R.O. Of Bharat Petroleum Corporation Limited (BPCL), merely because the Petitioner fears that there will be competition from the R.O. Of BPCL, the respondent no.1 herein. Before filing the petition, or even in the petition itself, nowhere the Petitioner has stated that the Petitioner is operating a R.O. Of HPCL in partnership with his cousin brother Bharatbhai Acharya Corporation for setting up an Retail Outlet at Sankeshwar. I say only on this account the Petitioner also did not apply pursuant to an advertisement issued by the Indian Oil Corporation. Therefore, the petition suffers from the vice of suppression veri and suggestio-falsi and hence the petition must be dismissed on the ground that the petition is motivated and misconceived."
14.4.It is necessary to mention at this stage that the assertions and allegations made by respondent No.1 Corporation and/or respondent No.3 in their respective affidavits are not disputed or denied by the petitioner.
15. Therefore, present petition does not deserve to be entertained also because the petitioner, even otherwise, is not eligible for even tendering an application and/or for allotment in view of the fact that the petitioner is a part of the partnership firm which is an allottee of a retail outlet allotted by a Public Sector Undertaking.
16. The said fact appears to be the actual reason for which the petitioner did not submit his application.
17. Consequently,
(a) for want of locus; and (b) in view of delay; and (c) also for the reason of non-disclosure of relevant facts; as well as (d) in view of the fact that the petitioner is, even otherwise, not eligible for allotment, the petition does not deserve to be entertained and is accordingly not entertained.
18. Since the Court finds that for the aforesaid reasons the petition is not maintainable, there is no need or occasion to examine the objection raised by the petitioner on the ground that the location of the land offered by the respondent no.3 is not fulfilling the condition mentioned in the advertisement. Besides this, the respondent Corporation has explained that the petitioner misread and misconstrued the advertisement and actually the respondent No.3 fulfilled all conditions and eligibility criteria as per the advertisement. The respondent Corporation has, as clarified by it, after proper scrutiny, found the respondent no.3 qualified and eligible applicant in accordance with the condition of the advertisement and other applicable rules and guidelines. Therefore also the decision does not warrant and does not call for any interference.
19. The petition, for the aforesaid reasons, is not maintainable and does not deserve to be entertained. The petitioner has failed to make out any case to set aside the decision of the respondent Corporation. The petition is, therefore, not accepted and it is hereby rejected.
(K.M.THAKER, J.) jani