1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T D.B. CIVIL SPECIAL APPEAL (W) NO.658/2010 Om Prakash Mundra VS. The Bharat Petroleum Corporation Ltd. & Ors. Date of Judgment : 9.11.2010 HON'BLE MR. JUSTICE A.M. SAPRE HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. Dinesh Mehta, for the appellant. Mr. Nitin Trivedi, Caveator. BY THE COURT : (PER HON'BLE A.M. SAPRE,J.) This is an intra court appeal filed by writ petitioner of W.P.No 5657 of 2010 under rule 134 of Rajasthan High Court Rules against an order dated 6.7.2010 passed by Single Judge in aforementioned writ petition. 2. By impugned order, the learned Single Judge dismissed the writ petition filed by appellant and in consequence upheld the action impugned by the writ petitioner in the writ petition. 3. So the question that arises for consideration in this intra court appeal is whether learned Single Judge was justified in dismissing the writ petition filed by the appellant thereby justified 2 in upholding the cancellation of letter of intent issued in favour of appellant by the respondent in relation to L.P.G. Dealership. 4. Facts of the case are these. 5. Pursuant to advertisement issued by respondent- Bharat Petroleum Corporation Limited (for short hereinafter called “Company”) inviting application for grant of dealership for supply of LPG cylinders for the area called Deshnok in District Bikaner, the appellant was granted letter of intent on his application by the company. The letter of intent was conditional and was to come in operation only after fulfillment of certain terms and conditions of the grant by the appellant. One of the condition of letter of intent was that the appellant had to make available suitable cite (land) for construction of godown for storage of LPG cylinders. 6. It is not in dispute that appellant had on his part proposed certain land for construction of godown in the area in question but the local authorities declined to grant no objection certificate for construction of godown on the land proposed by the appellant, interalia, on the ground that the cite proposed by the appellant is not suitable for such construction. Though it appears that after such denial by the local authority, the appellant attempted to offer alternative land, but such offer was not accepted by petroleum company with reference to the terms of the letter of intent earlier issued for construction of godown on the land earlier proposed by the appellant. 7. It is with this back ground, the company proceeded to cancel the letter of intent granted to the appellant giving rise to its challenge by the appellant by filing the writ petition out of which this intra court appeal arises. As observed supra, the learned single judge dismissed the writ petition and in consequence 3 upheld the cancellation of letter of intent which has given rise to filing of this intra court appeal by the writ petitioner. 8. Having heard the learned counsel for the appellant (writ petitioner) and on perusal of the record of the case, we are inclined to concur with the view taken by the learned Single Judge. 9. In our view, the reasoning so also the conclusion based on such reasoning assigned by the learned Single Judge is in conformity with the law governing the field. After considering the undisputed facts situation of the case, the learned Single Judge proceeded to dismiss the writ petition with the observations and findings as under: “I do not find any merit in the argument advanced. As a matter of fact, the petitioner while making application for grant of LPG Distributorship proposed for establishment of a godown at the land situated in Khasra No.959. The local authority refused for grant of No Objection Certificate in this regard for a definite and sufficient reason. As such, the land, which was taken into consideration by the petroleum company while issuing letter of intent, was not available with the petitioner for establishing a godown. So far as the alternative land is concerned, that too was not available with the petitioner in the month of April 2009, when a request in this regard was made and thus, specific refusal was made by the petroleum comp. The petitioner, in fact, made efforts to get No Objection Certificate from the local authority relating to the alternative land in the month of July, 2009, i.e. After refusal made by the petroleum company. 4 In view of the factual position aforesaid the petitioner was neither having suitable land in Khasra No.959 nor any other alternative suitable place having requisite approval for establishing godown to store LPG. As such, no wrong is committed by the respondent petroleum company while withdrawing the letter of intent. The petition for writ, therefore, is having no merit, same is dismissed accordingly.” 10. It can not be disputed that the letter of intent issued in favour of appellant was a conditional one and could be given effect to only on fulfillment of all its terms and conditions. In other words, it was obligatory upon the appellant to have ensured compliance of all its terms and conditions in letter and spirit to the satisfaction of the company. It was only then, the same could be given effect to by awarding him the dealership. As noted supra, availability of land for construction of Godown for storage of Gas cylinder was one of its conditions and indeed an important one. In the admitted facts situation of the present case, the appellant was unable to establish the godown on the site with reference to which the letter of intent was issued and thus was unable to carry out all the requirements of letter of intent. As a necessary consequence of such failure on his part, the company was well within their rights to cancel the letter of intent issued in favour of appellant. 11. It is not the case of the appellant that despite availability of land with the appellant in terms of letter of intent and which was timely brought to the notice of the company, the letter of intent was cancelled by the company by wrongly 5 assuming that no land was available with the appellant. Had it been so, then case would have been different. In such situation, action of company in cancelling the letter of intent could have been termed as being arbitrary and unreasonable. 12. Learned counsel for the appellant then contended that action of company in canceling the letter of intent is bad as it has an element of bias against the appellant so also a flavour of favour shown to respondent No.3 in allotment. We are not impressed by this submission for more than one reason. In the first place, no factual foundation is laid in support of this plea. Secondly, neither was it argued, nor any finding rendered by the Single Judge in this regard and lastly, if the cancellation was held good on the ground mentioned above and appellant was not able to assail the same successfully then in such circumstances, we fail to appreciate as to how and on what basis, this submission can be entertained, much less accepted in appeal. It is apart from the fact that it has otherwise no merit in the light of two reasoning given by us supra. 13. Learned counsel for the appellant then also took us to some correspondence with a view to show that action on the part of company was arbitrary and unreasonable. We do not find any merit in this submission. We can not go into factual issues like an original court and draw any conclusion in intra court appeal arising out of writ petition. What can not be done by the writ court, the same cannot be done by an appellate court. 14. It is trite principle of law laid down by Supreme Court in several decisions, that in contractual matters, the judicial interference under article 226 of Constitution is limited to only specific areas. The courts in its extra ordinary jurisdiction is not expected to take upon itself the entire contractual issues arising in 6 the case between the parties like an appellate court and try to find out the errors committed by one party qua other contracting party. It is essentially the sole discretion of the state or/and its authority to examine at their end – they being the contracting party and granter of larges, as to whether all terms of letter of intent (which is essentially in the nature of contract) are fulfilled by the grantee and if so whether it is to their satisfaction ? It is only when the court is able to notice that action of state or /its authority while coming to any conclusion on such issue is arbitrary or unreasonable on undisputed facts, then interference under Article 226 of Constitution of India may be called for at the instance of aggrieved contracting party. Needless to say, what is unreasonable or/and arbitrary is always a question of fact and depending upon the case made out on facts, appropriate writ can be prayed. 15. In this case, facts which are not in dispute do not satisfy the aforementioned test in favour of the appellant and hence it is not possible to issue any writ for quashing the action impugned in the writ. It was rightly declined by the writ court. 16. As a result of foregoing discussion, the appeal is found to be devoid of any merit. It is accordingly dismissed in limine. [Dinesh Maheshwari], J. [A.M. Sapre],J. /tarun/