IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE FIFTEENTH DAY OF NOVEMBER TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No.10568 of 2011 BETWEEN Smt. Trupthi Lahoti. ... PETITIONER AND The Chief Divisional Retail Sales Manager, Bharat Petroleum Corporation Ltd., Secunderabad and four others. ...RESPONDENTS Counsel for the Petitioner: MR. N. ASHOK KUMAR Counsel for the Respondents: MR. O. MANOHER REDDY MR. Y.N. LOHITHA The Court made the following order: ORDER: Petitioner questions the action of the Bharath Petroleum Corporation Limited (for short ‘BPCL’) in allotting retail petroleum outlet to fifth respondent as well as no objection certificate granted by the second respondent to BPCL. 2. Petitioner states that BPCL published a notification in newspapers inviting dealers to install retail outlet at different parts and so far as relevant, in this case, a retail outlet shown at Sl.No.51 described as Narayanpet (Vir Savarkar X Road - New Bus Stand Road), Mahabubnagar District, in the category open (W) with a regular marketing plan was notified inviting offers. The fifth respondent applied in response to the said notification and the petitioner, admittedly, did not apply. She states that as per the notification, the extent of land required for fulfilling eligibility was 35 Mts x 35 Mts (115 Ft x 115 Ft) but the petitioner states that under the impression that her land did not satisfy the dimensions required, she did not apply. The fifth respondent, who offered her land in response to the notification, was found satisfying the requisite criteria and was selected, whereupon BPCL applied for no objection certificate to the second respondent – District Collector, which has been granted for a site of the fifth respondent with dimensions of 84 Ft x 114.80 Ft totally admeasuring 895.87 sq. meters in Sy.Nos.261, 262 and 265 of Narayanpet. 3. The main contention of the petitioner in this writ petition is that though the fifth respondent’s site does not conform to the dimensions notified, which is confirmed by the no objection certificate issued by the second respondent, the fifth respondent is selected and awarded dealership. 4. The writ petition was opposed by BPCL as well as by the fifth respondent by filing a detailed counter. In the counter affidavit filed by BPCL, it is alleged that the dimensions notified in the advertisement are only preferable dimensions and the site of the fifth respondent, which was selected, measures 34.5 Mts x 35 Mts, which is in complete conformity with the notified dimensions and as such, she was selected and lease deed was also executed between BPCL and the fifth respondent and thereafter, BPCL applied for no objection certificate to the second respondent. With regard to lesser dimensions mentioned in the no objection certificate, it was explained that in the no objection certificate the frontage of fifth respondent’s land was reduced to 25.9 Mts on the ground that there is a sub-road, while in fact, on ground, no sub-road exists. It was, therefore, asserted that selection of the fifth respondent is in due conformity with the notified dimensions and the preferable dimensions mentioned in the notification has to be construed, as approximate size. It was also stated in the counter that father-in-law of the petitioner and her close family relations own two retail outlets in the area and only as a business rivalry, the petitioner, who did not even apply, has challenged the selection of the fifth respondent. 5. The counter affidavit filed by the fifth respondent also reiterates similar contentions and states that the fifth respondent applied duly conforming to the notified dimensions even though they are approximate and in any case, the selection committee of BPCL evaluated the application of the fifth respondent and found the land offered by her as suitable. The fifth respondent has filed letter of her appointment dated 29.03.2011 appointing her as proprietor in the name of M/s. Shravan Filling Station wherein BPCL has become lessee of the said land admeasuring 1071.60 sq. yards (approximately 896 sq. mts.). It is further averred in the counter affidavit that pursuant to the letter of appointment civil work has commenced after installation of tank but further work is held up on account of interim order dated 19.04.2011 granted by this Court. 6. Petitioner has also filed a reply affidavit where she reiterates here allegation that the site offered by the fifth respondent is not in conformity with the notified dimensions. Significantly, it is not denied by the petitioner that her family members have petroleum outlets but asserts that they are not within the prohibited relationship so far as petitioner is concerned. 7. Heard Mr. N. Ashok Kumar, learned counsel for the petitioner and Mr. O. Manoher Reddy, learned standing counsel for BPCL and Mr. Y.N. Lohita, learned counsel for the fifth respondent. 8. Learned counsel for the petitioner while reiterating the submissions based on the allegations made in the affidavit contends that the dimensions in the notification was an essential condition, which could not have been relaxed by the respondents and placed reliance upon a decision of a Division Bench of this court in S.K. ENTERPRISES v. REGISTRAR, ENGLISH AND FOREIGN LANGUAGES UNIVERSITY [1]as well as the judgment of the Supreme Court in TAMIL NADU COMPUTER SC. B.ED. G.T. WELFARE SOCIETY v. HIGHER SECONDARY SCHOOL COMPUTER TECHNICAL ASSOCIATION[2] as well as M/S. MONARCH INFRASTRUCTURE (P) LTD. v. COMMISSIONER, ULHASNAGAR MUNICIPAL CORPORATION[3] He emphatically contended that once the contract or tender is notified by notifying the eligibility conditions, any alterations in the eligibility must result in the fresh tender process. 9. Learned counsel for the fifth respondent places reliance upon a decision of the Supreme Court in DIRECTORATE OF EDUCATION v. EDUCOMP DATEMATICS LTD.[4] contending that this Court under Article 226 of the Constitution of India would interfere only if the terms of the tender are found arbitrary, discriminatory or if decision suffers from bias and no interference is permissible merely because the Court feels that some other terms would have been more preferable. 10. Learned standing counsel for BPCL points out that it’s officers are made respondents rather than the Corporation and that petitioner, who never applied in response to the notification cannot seek to invalidate the selection made in pursuance thereof. He submits that the selection of site is based upon subjective evaluation by the competent authority of the Corporation keeping in mind the location, feasibility and desirability of establishing the petroleum outlet, which would be abutting on the State highway. Petitioner, who is a stranger, therefore, cannot question such decision of the Corporation and seek to invalidate the selection of the fifth respondent. 11. After considering the rival contentions, in my view, the writ petition suffers from a fundamental defect of non-joinder of necessary party. The first respondent impleaded in the writ petition is the Chief Divisional Retail Sales Manager, BPCL, though the writ petition is directed against the decision of BPCL in selecting the fifth respondent as it’s retailed dealer in pursuance of it’s notification. Under Rule 24 of the Writ Proceedings Rules, the provisions of civil procedure code get applied to the extent not specifically provided for by the Writ Proceedings Rules. Order 29 of the Code of Civil Procedure, 1908, provides as to the manner in which suits by/or against corporations have to be instituted. BPCL, being a corporate legal entity, the same ought to have been impleaded, as under Order 29 Rule 2 CPC the summons or any notice of such suit or proceedings against the corporation must be served on the Secretary or the Director or other Principal Officer of the corporation. The Chief Divisional Retail Sales Manager, who is impleaded, is neither proper nor necessary party when action of a juristic corporation is questioned in the writ petition. In the counter affidavit filed by BPCL, the aforesaid contention was specifically raised but no attempt is made by the petitioner to seek leave to cure the said defect. Though the petitioner is not being non-suited on that ground and this writ petition is being disposed of merits, the fatal defect of non-joinder of necessary party is required to be noticed. 12. The second fundamental defect, in my view, is the lack of locus standi of the petitioner to question the selection of fifth respondent when the petitioner, admittedly, has not applied at all in response to the notification offering her candidature. The question of locus standi was considered by the Supreme Court in several decisions including the branch of service law. A few paragraphs from the reported decisions would elaborate the said aspect. The Supreme Court in GHULAM QADIR v. SPECIAL TRIBUNAL[5] held at para 38 as under: “36. There is no dispute regarding the legal proposition that the rights under Article 226 of the Constitution of India can be enforced only by an aggrieved person except in the case where the writ prayed is for habeas corpus or quo warranto. Another exception in the general rule is the filing of a writ petition in public interest. The existence of the legal right of the petitioner which is alleged to have been violated is the foundation for invoking the jurisdiction of the High Court under the aforesaid Article. The orthodox rule of interpretation regarding the locus standi of a person to reach the court has undergone a sea- change with the development of constitutional law in our country and the constitutional courts have been adopting a liberal approach in dealing with the cases or dislodging the claim of a litigant0 merely on hyper-technical grounds. If a person approaching the court can satisfy that the impugned action is likely to adversely affect his right which is shown to be having source in some statutory provision, the petition filed by such a person cannot be rejected on the ground of his having not the locus standi. In other words, if the person is found to be not merely a stranger having no right whatsoever to any post or property, he cannot be non-suited on the ground of his not having the locus standi.” The Supreme Court in VINOY KUMAR v. STATE OF UTTAR PRADESH[6] held at para 2 as under: “2. Generally speaking, a person shall have no locus standi to file a writ petition if he is not personally affected by the impugned order or his fundamental rights have neither been directly or substantially invaded nor is there any imminent danger of such rights being invaded or his acquired interests have been violated ignoring the applicable rules. The relief under Article 226 of the constitution is based on the existence of a right in favour of the person invoking the jurisdiction. The exception to the general rule is only in cases where the writ applied for is a writ of habeas-corpus or quo warranto or filed in public interest. It is a matter of prudence, that the court confines the exercise of writ jurisdiction to cases where legal wrong or legal injuries caused to a particular person or his fundamental rights are violated, and not to entertain cases of individual wrong or injury at the instance of third party where there is an effective legal aid organisation which can take care of such cases. Even in cases filed in public interest, the court can exercise the writ jurisdiction at the instance of a third party only when it is shown that the legal wrong or legal injury or illegal burden is threatened and such person or determined class of persons is, by reason or poverty, helplessness or disability or socially or economically disadvantages position, unable to approach the court for relief.” 13. Petitioner tries to explain that aspect and tries to sustain the writ petition on the ground that she was under the impression that the site belonging to her do not satisfy the requirement and she was not aware that BPCL would consider the dimensions as approximate or preferable. Such explanation of the petitioner is belied by the notification itself published in the New Indian Express dated 05.10.2009, produced by the fifth respondent along with the counter affidavit. The notification itself states that under column 8 ‘preferable site dimensions’ and thereafter, the frontage in meters and depth in meters is mentioned. Apparently, either the petitioner has not bestowed any attention to that part or is deliberately pleading ignorance after finding that the fifth respondent is selected. This aspect also needs to be viewed from the context of the petitioner’s close relatives owning and running two petroleum outlets in the same area, which suggests a clear attempt arising out of business rivalry to avoid competition. 14. So far as the main allegation of the petitioner that the fifth respondent’s site, which is selected, falls short of dimensions notified, is also factually incorrect. The fifth respondent has stated on affidavit and is supported by documents produced by her to the respondents for verification and inspection of the site that the site offered by her has dimensions 34.5 Mts x 35 Mts, which is almost precisely what is notified in the advertisement. A great stress is laid by the learned counsel for the petitioner on the no objection certificate given by the second respondent for a reduced extent but it has to be noted that the said no objection certificate was applied for by BPCL after the selection of fifth respondent. While granting the said no objection certificate the revenue authorities do not dispute the fifth respondent’s title and possession over the land selected but they have reduced the extent covered by the no objection certificate by reducing the frontage from 35 Mts to 29.5 Mts on the ground of existence of a 40 feet sub- road. The counter affidavit of BPCL specifically states that there is no physical existence of any road at the site and as such, there is no impediment for BPCL to select the fifth respondent’s site with dimensions aforesaid for retail outlet. When BPCL applied for no objection certificate to the District Collector for putting up a retail petroleum outlet as required under Rules for import and storage of petroleum products, the Collector issued the said no objection certificate but by reducing frontage of the site. That by itself does not vitiate the selection of the fifth respondent and it cannot be said that any fraud or misrepresentation is made by the fifth respondent on BPCL for securing the retail outlet dealership. 15. The decision of a Division Bench of this Court in S.K. ENTERPRISES’s case (1 supra) has no relevance to the issue involved as on the facts of that case the requirement of annual turnover was relaxed without notifying it, and no such fact situation arises in the present case. The decision in TAMIL NADU COMPUTER SC. B.ED. G.T. WELFARE SOCIETY’s case (2 supra) also does not apply as on the facts of that case, after the selection process had started, the marks fixed, as notified, were reduced. Similarly, in the decision in M/S. MONARCH INFRASTRUCTURE (P) LTD.’s case (3 supra) the pre-condition of deposit of EMD by substituting it by photocopy of the draft was held as amounting to alteration of eligibility condition and as such, not approved. In the present case, there is neither any change in the eligibility criteria nor the selection process is tainted with any arbitrary or discriminatory or any biased attitude on the part of BPCL. Hence, no interference under Article 226 of the Constitution of India is warranted. The writ petition is dismissed with costs quantified at Rs.10,000/- (Rupees Ten Thousand only) payable by the petitioner to the respondent – corporation and consequently, the interim order granted by this court on 19.04.2011 shall stand vacated. _____________________ VILAS V. AFZULPURKAR, J November 15, 2011 DSK [1] 2011 (2) ALT 474 (D.B.) [2] 2010 AIR SCW 2825 [3] AIR 2000 SC 2272 [4] (2004) 4 SCC 19 [5] (2002) 1 SCC 33 [6] (2001) 4 SCC 734