IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.433 of 2010 In Civil Writ Jurisdiction Case No. 15115 of 2009 With Interlocutory Application No. 2334 of 2010 In Letters Patent Appeal No.433 of 2010 ====================================================== M/S Sanjay Gas Distributor Pvt. Ltd., having its office at Kazi-Indda, Chainpur, P.S. Maniyari, Distt.- Muzaffarpur through its Director Sanjay Nath Ravi, S/o Sri Baidya Nath Prasad. .... .... Writ Petitioner-Appellant Versus 1. M/S Bharat Petroleum Corporation Ltd., having its registered office at Bharat Bhawan, 4 & 6, Currimbhoy Road, Ballard Estate, Post Box No.688, Mumbai- 400001 through the General Manager. 2. The General Manager, M/S Bharat Petroleum Corporation Ltd., having its registered office at Bharat Bhawan, 4 & 6, Currimbhoy Road, Ballard Estate, Post Box No. 688, Mumbai-400001 3. Area Marketing Manager, M/s Bharat Petroleum Corporation Ltd., 3rd Floor, Ashiana Chamber, Exhibition Road, Patna-800001 (Bihar) 4. Territory Manager (LPG) M/S Bharat Petroleum Corporation Ltd., Patna LPG Territory-Cum-Bottling Plant, Fatuha Industrial Area, Mouza Raipura, P.O. & P.S. Fatuha, Distt.- Patna 5. Union of India through the Secretary, Ministry of Petroleum & Natural Gas, Government of India. .... .... Respondents-Respondents ====================================================== Appearance : For the Appellant : Mr. Y.V.Giri, Senior Advocate with Mr. Raju Giri, Advocate For the Respondents 1 to 4: Mr. Madhuresh Prasad, Advocate For the Respondent No.5 : Mr. Ashok Kumar Singh, C.G.C. ====================================================== Patna High Court LPA No.433 of 2010 (4) dt. 18-10-2011 2 / 7 2 CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S.K.KATRIAR C.A.V. JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) 4. 18-10-2011 This Appeal under Clause 10 of the Letters Patent is preferred by the writ petitioner against the judgment and order dated 19th February 2010 passed by the learned single Judge in above C.W.J.C. No. 15115 of 2009. The matter at dispute is award of LPG distributorship of Bharat Petroleum Corporation Limited in the town of Muzaffarpur. The three Oil Companies viz. Indian Oil Corporation Limited, Bharat Petroleum Corporation Limited and Hindustan Petroleum Corporation Limited published a combined advertisement on 17th October 2007 declaring its proposal to appoint LPG distributors under various categories at specified locations in the State of Bihar from amongst the candidates belonging to different categories. One of the locations was Muzaffarpur under the distributorship of Bharat Petroleum Corporation Limited (hereinafter referred to as „the Corporation‟). Pursuant to the said public notice, the petitioner, a company within the meaning of the Companies Act, 1956, applied for distributorship at Muzaffarpur in non-individual category. The said public notice specified, inter alia, “any company incorporated under Companies Act 1956, will not be judged under the parameters for Educational qualifications, Age and Personality. They will be given full marks”. The said public notice also set out the marking pattern under various heads for individual and non-individual applicants. Under the said marking Patna High Court LPA No.433 of 2010 (4) dt. 18-10-2011 3 / 7 3 pattern maximum 15 marks were allotted under the head „Educational Qualification‟ and two marks for „Personality‟. As per declared policy, non-individual applicants were entitled to allotment of maximum marks under the said heads of „Educational Qualification‟ and „Personality‟. Thus, straight 17 marks were assured for every non-individual applicant. The Corporation had also published a 2007 brochure declaring its policy of selection for award of LPG distributorship. Before the procedure for award of distributorships at various locations was completed a change in the policy of Government of India intervened. The Government of India in the Ministry of Petroleum and Natural Gas issued a revised guideline for selection of dealers and distributors of petroleum products under its communication dated 15th September 2008. Under the said revised guidelines the Government of India altered the marking pattern in respect of non-individual applicants. Under the revised guidelines for non-individual applicants „Zero‟ mark has been allotted under the heads „Educational qualification‟ and „Personality‟. Instead the said 17 marks are distributed under the heads „Age‟, „Experience‟ and „Business Ability/Acumen‟ to make up a total 100 marks. The said guidelines also specified that they shall come into effect from the date of issue of that letter. The Oil Companies may, if permitted under the terms and conditions of the advertisement, alter or revise such advertisement in conformity with the amendment introduced under the said letter. Pursuant to the aforesaid amendment, the Corporation published a public notice on 28th January 2009. On 17th August 2009, the Corporation addressed a letter to the appellant notifying the amendment in the manner of selection of the LPG distributors and requested the appellant, “to submit a Patna High Court LPA No.433 of 2010 (4) dt. 18-10-2011 4 / 7 4 fresh affidavit as per the format enclosed along with the enclosures by 16.9.2009 to our office in the envelope enclosed with this letter. In case we do not receive fresh affidavit within the specified date your application will not be considered and treated as not interested”. Pursuant to the said letter the appellant submitted the required affidavit under letter dated 26th August 2009. Nevertheless, the appellant filed above C.W.J.C. No. 15115 of 2009 under Article 226 of the Constitution for a direction to the Corporation to consider the application for distributorship made by the appellant in accordance with the terms of the advertisement dated 17th October 2007 and the brochure published by the Corporation in 2007. In the alternative the appellant prayed that a fresh advertisement be published incorporating the amended guidelines for selection of distributors. The petition was contested by the Corporation and the Government of India. The Corporation maintained that it was bound by the policy decision of the Government of India and that the selection for distributorship was made uniformly according to the amended guidelines. The Corporation also relied upon the general terms of the advertisement which read, “The company reserves the right to cancel/withdraw/amend this advertisement or extend the due date at its sole discretion without assigning any reason”, to contend that the Corporation had reserved the right to alter the requirements under the advertisement and that it was not required to issue a fresh advertisement. The Government of India submitted that the amendment in the guidelines for selection of the distributors was required to make the selection procedure more rational and to remove the disparity created by the same marking pattern for Patna High Court LPA No.433 of 2010 (4) dt. 18-10-2011 5 / 7 5 individual and non-individual applicants and by awarding full marks to the non-individual applicants under the heads „Educational Qualification‟ and „Personality‟. The learned single Judge held that having filed the affidavit as called for the appellant had submitted to the selection procedure in accordance with the amended guidelines. It was not open to the appellant to challenge the same. The learned single Judge held that once the amended guidelines were uniformly applied across the country without any discrimination the appellant was not entitled to the relief prayed for. Consequently, the learned single Judge has dismissed the writ Petition. Therefore, the present Appeal. Learned counsel Mr. Y.V. Giri has appeared for the appellant. He has taken us through the above referred record. He has vehemently submitted that the action of the Corporation in applying the amended guidelines to the appellant is not only arbitrary; it is vitiated by mala fide. He has submitted that the selection process once commenced any alteration in the selection process is forbidden. The selection process must be completed in accordance with the terms and conditions mentioned in the advertisement. If at all the Corporation intended to apply the amended parameters for selection of the distributors it could have been done only through a fresh advertisement. Mr. Giri has also relied upon Section 23 of the Indian Contract Act, 1872 to contend that the affidavit submitted by the appellant on 26th August 2009 is not binding to the appellant. The contention is recorded with a view to rejecting the same. In support of his submission, Mr. Giri has relied upon the judgments of the Hon‟ble Supreme Court and of this Court and of Himachal Pradesh High Court in the matters of M/s. Patna High Court LPA No.433 of 2010 (4) dt. 18-10-2011 6 / 7 6 G.J.Fernandez v. State of Karnataka and others, (A.I.R. 1990 S.C. 958); of Anirudh Prasad Choudhary v. State of Bihar & Ors. (S.B.), [1996 (1) PLJR 633]; of Namita Jayaswal vs. State of Bihar & Others, [1993 (1) PLJR 391]; of Anuj Gupta and others v. State of Himachal Pradesh and others, [1990(6) SLR 79); of B.S.N. Joshi & Sons Ltd. v. Nair Coal Services Ltd. and others, [(2006) 11 SCC 548]; of Central Inland Water Transport Corporation Ltd. and another v. Brojo Nath Ganguly and another, (A.I.R. 1986 S.C. 1571); of Secretary-cum-Chief Engineer, Chandigarh v. Hari Om Sharma and Others,[(1998) 5 SCC 87]; and of M/s Shakti Cold Storage & Anr. Vs. Bihar State Electricity Board, [2008(4) BBCJ V-260]. The Appeal is contested by the Corporation and the Union of India. They have supported the judgment of the learned single Judge. We have considered the above referred judgments relied upon by Mr. Giri. At the outset, we may note that the amendment proposed by the Union of India under its communication dated 15th September 2008 is not challenged before us; nor are we supposed to sit in appeal over the wisdom of the Government in proposing such amendment. Nevertheless, we may note that the award of full marks to the non-individual applicants under the heads „Educational qualification‟ and „Personality‟ did act to advantage to non-individual applicants. It is evident that the Government of India with a view to removing the disparity proposed the amendment in the marking pattern. We see no illegality or arbitrariness in the said amendment brought out on 15th September 2008; nor its application for selection of distributors would be unfair and unreasonable. As brought out in the counter affidavit, since the date of the said amendment the Patna High Court LPA No.433 of 2010 (4) dt. 18-10-2011 7 / 7 7 selection of the distributors is uniformly made in accordance with the amended parameters. It is not the case of the appellant either that the amended parameters are not applied uniformly. The above referred judgments also reiterate the well settled law in the matter of contracts by the public authority that such contract or any term of the contract should not be unfair or unreasonable. In case the party is not in a bargaining position on account of the attendant circumstances, the situation of the party, lack of experience or judgmental ability, the public authority shall not exploit such situation or circumstances to its own advantage and to disadvantage of the other party. In our view, in the present case, as the terms and conditions of the advertisement did permit the Corporation to cancel, withdraw or amend the terms of the advertisement or to extend the due date at its own discretion; as the Corporation has applied the amended parameters uniformly for selection of distributors, we see no merit in the contentions raised by the appellant. Further it cannot be said that the appellant was disadvantaged due to its circumstances or situation and was co-erced or compelled to submit to the amended parameters. We agree with the learned single Judge. The Appeal is dismissed. Pawan/- (R.M. Doshit, CJ) S.K. Katriar, J. I agree. (S.K.Katriar, J)