K.K. George v. Regional LPG Manager (South), Bharat Petroleum Corporation Limited and Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 5[TH] DAY OF DECEMBER 2022 / 14TH AGRAHAYANA,** **1944** ## **WP(C) NO. 37224 OF 2022** ## **PETITIONER/S:** K.K.GEORGE AGED 62 YEARS S/O KURIAKOSE, KANNANGANAMALIL, THRIKKARIYOOR, ERNAKULAM - 686 692. BY ADVS. P.RAMAKRISHNAN PREETHI RAMAKRISHNAN (P-212) ASHA K.SHENOY C.ANIL KUMAR PRATAP ABRAHAM VARGHESE ## **RESPONDENT/S:** 1 THE REGIONAL LPG MANAGER (SOUTH) BHARAT PETROLEUM CORPORATION LIMITED NO. 1, RENGANATHAN GARDENS, OFF 11TH MAIN ROAD, ANNA NAGAR WEST, CHENNAI - 600 040. 2 CHIEF MANAGER, LOGISTICS (LPG SOUTH), BHARAT PETROLEUM CORPORATION LIMITED, RANGANATHAN GARDEN, 11TH MAIN ROAD, ANNA NAGAR WEST, CHENNAI - 600 040. 3 ADDL.R3. BHARAT PETROLEUM CORPORATION LIMITED (SOUGHT TO BE IMPLEADED) BY ADVS. M. GOPIKRISHNAN NAMBIAR (B/O) M.GOPIKRISHNAN NAMBIAR K.JOHN MATHAI JOSON MANAVALAN KURYAN THOMAS PAULOSE C. ABRAHAM NAYANPALLY RAMOLA IZHAR MOHAMMED RAJA KANNAN **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON** **30.11.2022, THE COURT ON 05.12.2022 DELIVERED THE FOLLOWING:** W.P.(C) No.37224 of 2022 -2- ## **JUDGMENT** Dated this the 05[th] day of December, 2022 The petitioner is engaged in the business of transportation of LPG cylinders for petroleum companies. The petitioner had submitted a tender in response to Ext.P1 notification issued by the first respondent. As per Clause 8(i) of the Standard Terms and Conditions of Ext.P1, those tenderers whose trucks are currently in contract with other locations of BPCL or other PSU Oil Companies should attach NOC from the concerned region or other PSU oil companies along with the credential bid. The petitioner's grievance is that, despite the above requirement in Clause 8(i), respondents are accepting conditional NOC from tenderers who are having contract in other locations of BPCL or other PSU companies. Ext.P2 and Ext.P5 are highlighted as examples of W.P.(C) No.37224 of 2022 -3- conditional NOC produced by tenderers and accepted by the respondents. This illegality was brought to the notice of the first respondent by submitting Ext.P3 representation. Thereafter, the petitioner approached this Court. That writ petition was disposed of directing the competent officer in Bharath Petroleum Corporation Ltd (BPCL) to address petitioner's grievance. In compliance of the direction, Ext.P4 communication was issued to the petitioner rejecting the representation. Aggrieved, this writ petition is filed. 2. Adv.P.Ramakrishnan, learned Counsel for the petitioner submitted that, Clause 8(i) of Ext.P1 is categoric to the effect that tenderers having subsisting transportation contracts should produce No Objection Certificate. The said condition is incorporated with the objective of ensuring that vehicles offered by the bidders are available when BPCL calls upon them to fulfill W.P.(C) No.37224 of 2022 -4- its requirements. The vehicles running on contract with other oil companies will not be released, unless the contractor replaces the vehicles with a new vehicle. It is impossible for the contractors to substitute the vehicles with another higher model vehicle within the short span of time that will be granted. This ultimately will effect the transportation of LPG cylinders of BPCL. Being so, the BPCL should prefer contractors without any subsisting contract or award the contract only in favour of contractors producing unconditional NOC. Attention is drawn to Annexure I to Ext.P1, as per which, details of the trucks offered by the tenderers has to be entered in the website. Clause No.f in the declaration in Annexure I require the tenderers to affirm that necessary unconditional NOC has been obtained from OMCs for the trucks quoted [if operating with other OMCs]. It is submitted that Clause 3 of the general W.P.(C) No.37224 of 2022 -5- terms and conditions mandate that the bid should be in line with the terms and conditions of the tender and provides for summary rejection of tenders not confirming to the terms and conditions. It is hence contended that, insofar as the tenderers are bound to declare that they have produced unconditional NOC, tenders submitted without complying with that requirement are liable to be rejected summarily. Being so, the reasoning in Ext.P4 is perverse and contrary to the tender conditions in Ext.P1. 3. Adv.Ramola Nayanpally, learned Counsel appearing for the respondents raised preliminary objection as to maintainability of the writ petition. It is contended that no public law element is involved, the subject matter of the dispute being contractual and commercial in nature. It is contended that the petitioner having failed to implead the tenderers who have submitted conditional NOCs along with their bids, ## W.P.(C) No.37224 of 2022 -6- the writ petition is liable to be dismissed for non-impleadment of necessary parties. Thirdly, it is argued that the petitioner has an efficacious alternative remedy under Clause 20(d) of the General Terms and Conditions of Tender. As per Clause 20(d), any dispute or complaint ought to be raised with the Independent External Monitor. 4. On merits, it is submitted that as per Clause 8(i), the requirement is only to produce NOC. The term 'unconditional NOC' is not used anywhere, except in the declaration in Annexure I. In support of this argument, reference is made to the list of documents to be submitted by the tenderers at Clause 16 of the Standard Terms and Conditions of Tender and Annexure XV undertaking to Ext.P1. It is contended that, usage of the term 'unconditional NOC' in the Annexure does not qualify the tender conditions. The purpose of requiring the tenderer to submit NOC to ensure that if the work is awarded to the truck under ## W.P.(C) No.37224 of 2022 -7- contract, the same will be made available on demand. If the contractor fails to produce the truck within the time granted, necessary penalties and other penal consequences will follow. It is the prerogative of the employer to decide whether the NOC should be unconditional or not. A participating bidder cannot insist for incorporation of a particular condition in the tender document. Relying on the decision in ## _**National High Speed Rail Corporation Limited v.**_ ## _**Montecarlo Limited and another [(2022) 6 SCC**_ _**401]**_ **,** it is argued that the scope for interference in matters pertaining to contracts is extremely limited and no extraordinary circumstance warranting interference is made out by the petitioner. 5. In my opinion, before proceeding to consider the dispute involved, it would be appropriate to consider the law laid down by the ## W.P.(C) No.37224 of 2022 -8- Apex Court as to the scope for interference in contractual matters. After detailed survey of the above precedents, the Apex Court in _**National**_ ## _**High Speed Rail Corporation**_ **[(2022) 6 SCC 401]** has held that, before interfering in a contract matter, the court should pose the following questions to itself before interfering in a contractual dispute; **“** _29. Thus, from the aforesaid decisions, it can be seen that a court before interfering in a contract matter in exercise of powers of judicial review should pose to itself the following questions:_ _(i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; or whether the process adopted or decision made is so arbitrary and irrational that the court can say:“the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached”? And_ _(ii) Whether the public interest is affected?_ _If the answers to the above questions are in the negative, then there should be no_ W.P.(C) No.37224 of 2022 -9- _interference under Article 226.”_ 5. In the instant case, the answer to those questions are as under; The decision to accept conditional NOC is not mala fide or intended to favour someone. The process adopted cannot be held to be so arbitrary and irrational that no responsible authority acting reasonably and in accordance with relevant law could have reached such a decision. Further, no public interest is involved and what is being canvassed is the petitioner's commercial interest. 6. As rightly pointed out by the Counsel for the respondents, nowhere in Ext.P1, except in the declaration in Annexure I, the term 'unconditional NOC' is used. Being so, there is merit in the contention that the term 'unconditional NOC' used in the declaration of Annexure I cannot qualify the general and special terms of the tender. I am not delving into the W.P.(C) No.37224 of 2022 -10- contention regarding maintainability, since the writ petition is liable to be dismissed even otherwise. For the aforementioned reasons, the writ petition is dismissed. Sd/- **V.G.ARUN JUDGE** Scl/ -11- ## W.P.(C) No.37224 of 2022 ## PETITIONER EXHIBITS |Exhibit P1|TRUE COPY OF NOTIFICATION ISSUED BY| |---|---| ||THE 1ST RESPONDENT INVITING TENDER FOR| ||TRANSPORTATION OF PACKED LPG| ||CYLINDERS.| |Exhibit P2|TRUE COPY OF NO OBJECTION CERTIFICATE| ||DATED 17/10/2022 SUBMITTED BY A| ||TENDERER IN RESPECT OF HIS VEHICLES| ||WHICH ARE PRESENTLY ON CONTRACT WITH| ||INDIAN OIL CORPORATION.| |Exhibit P3|TRUE COPY OF REPRESENTATION DATED| ||24/10/2022 SUBMITTED BY THE PETITIONER| ||BEFORE THE 1ST RESPONDENT.| |Exhibit P4|TRUE COPY OF LETTER DATED 14/11/2022| ||FROM THE 2ND RESPONDENT TO THE| ||PETITIONER.| |Exhibit P5|TRUE COPY OF UNCONDITIONAL NOC DATED| ||20/10/2022 ISSUED BY BPCL.| |Exhibit P6|TRUE COPY OF CONDITIONAL NOC DATED| ||17/10/2022 ISSUED BY BPCL.|