WP(C)/600/2021 of M/S Trinayanee Indane Gas Agency Vs Indian Oil Corporation Limited on 22 December 2022

1. M/S Trinayanee Indane Gas Agency, having its office at 68, Nehru Super Market, Udaipur, P.O. & P.S. R. K. Pur, Sub-Division-Udaipur, District-Gomati Tripura, a Proprietorship concern, represented by its proprietor, Smt. Sima Bhadra Lodh, wife of Arindam Lodh, resident of Akhaura Road, P.O. Agartala, P.S. West Agartala, Sub-Division-Sadar, District: West Tripura.Super Market, Udaipur, P.O. & P.S. R. K. Pur, Sub-Division-Udaipur, District-Gomati Tripura, a Proprietorship concern, represented by its proprietor, Smt. Sima Bhadra Lodh, wife of Arindam Lodh, resident of Akhaura Road, P.O. Agartala, P.S. West Agartala, Sub-Division-Sadar, District: West Tripura.

…..Petitioner

-V E R S U S-

[***As per direction of the Hon’ble Courts order dated 01.09.2021, respondent No.1 to 3 has been deleted.] respondent No.1 to 3 has been deleted.]

1. Indian Oil Corporation Limited, a government of India undertaking, represented by its Deputy General Manager (Contracts), having his office at Indian Oil Bhawan, 2.Gariahat Road (south), Dhakuria, Kolkata-700068. represented by its Deputy General Manager (Contracts), having his office at Indian Oil Bhawan, 2.Gariahat Road (south), Dhakuria, Kolkata-700068.

2. The Deputy General Manager (Contracts), having his office at Indian Oil Bhawan, 2.Gariahat Road (south), Dhakuria, Kolkata-700068. Indian Oil Bhawan, 2.Gariahat Road (south), Dhakuria, Kolkata-700068.

3. The General Manager (LPG-O), having his office at Indian Oil Bhawan, Sector-III, Noonmati, Guwahati-781020. Bhawan, Sector-III, Noonmati, Guwahati-781020.

….. Respondents

B_E_F_O_R_E HON’BLE THE CHIEF JUSTICE (ACTING)HON’BLE MR. JUSTICE S. G. CHATTOPADHYAYFor Appellant(s) : Mr. Somik Deb, Sr.Advocate. Mr. Abir Baran, Advocate. For Respondent(s) : Mr. B. N. Majumder, Sr.Advocate. Mr. R. Saha, Advocate. Date of hearing : 20.12.2022 Date of delivery of Judgment and order : 22.12.2022 Whether fit for reporting : NO

JUDGMENT & ORDER

C. J.( Acting)

Heard Somik Deb, learned senior counsel assisted by Mr. Abir Baran, learned counsel appearing for the petitioner. Also heard Mr. B. N. Majumder, learned senior counsel assisted by Mr. R. Saha, learned counsel appearing for the respondent.

[2] The present petition has been filed under Article-226 of the Constitution of India for enforcement of the Constitutional rights of the petitioner guaranteed under Articles-14, 19, 21 & 300A of the Constitution of India and also directing the respondents to transmit the records appertaining to this writ petition, lying with them, for rendering substantive and conscionable justice to the petitioner and setting aside the impugned letter dated 25.08.2021. Further, to direct the respondents to forthwith revoke the impugned letter dated 25.08.2021 and to execute the agreement with the petitioner and thereupon issue work order in favour of the petitioner.

[3] The facts in brief are that, for carrying on the business of sale of Liquefied Petroleum Gas (LPG for short) Cylinders, the petitioner had applied for issuance of license and after maintaining necessary formalities, the Director, Department of Food, Civil Supplies& Consumer Affairs; Government of Tripura issued a license, in favour of the petitioner. fur running the said business, the petitioner had applied for Trade License , consequent whereto, the Chief Executive Officer, Udaipur, Municipal Council issued a license under No.344 in favour of the petitioner, enumerating the terms and conditions thereof.

[4] For transportation of Indane LPG Cylinders, from Bodhjungngar Plant to various destinations in the State of Tripura, IOCL (Marketing Division) issued a composite notice inviting tender (NIT for short), in connection therewith, the petitioner who was holding a license of distributorship, participated in the said tender process, and was successful. Bu the said NIT, without any reasonable basis, the petitioner has been categorized

as Category-II with a specification that the maximum to numbers of won use trucks can be utilized. It would be worthwhile to mention herein that that approach road, leading to the go-down of the petitioner is a narrow one and the same do not admit of ingress and egress of heavy vehicles. Since, the said go-down did not and could not permit entry of 10 wheelers heavy vehicles, the petitioner made a request to the authorities of IOCL, for modification of such categorization of the petitioner.

[5] In response to the request made b y the petitioner for modification of the categorization, the Manager, sales of the IOCL made an online communication to the DGM (Operation), IOCL dated 25.01.2020 requesting the said authority to accede, to the request tendered by the petitioner. In the same line, the Manager, Sales of the IOCL made an online communication to the DGM, sales, IOCL dated 31.08.2020 requesting the said authority to accede, to the request, tendered by the petitioner. Taking note of the factual difficulties posed by such categorization of the petitioner and the notations made in the request letters dated 25.01.2020 and 31.08.2020, the petitioner submitted her bid on 12.09.2020. After submission of the above offer of the petitioner dated 12.09.2020, the tender inviting authority made a communication to the petitioner dated 14.09.2020, thereby noting that the bid, submitted by the petitioner has been admitted by the committee.

[6] Mr. Somik Deb, learned senior counsel assisted by Mr. Abir Baran, learned counsel appearing for the petitioner has submitted that even though arbitrarily and unilaterally, by the NIT the petitioner was categorized as Category-II but, while quoting her rate, the petitioner had categorized herself as Category-I. It reveals from the letter of acceptance dated 25.05.2021 and the letter of intent dated 18.06.2021 that IOCL taking note of the ground realities and on assessment of the offer of the petitioner, had categorized the petitioner as Category-I thereby noting the petitioner as a distributor, further permitting the petitioner to use the abovenoted vehicles for transportation of the LPG cylinders to be distributed to its consumers.

[7] He has further submitted that consequent upon the issuance of the letter of acceptance dated 25.05.2021 and the letter of intent dated 18.06.2021, it can safely be summed up that a concluded contract has been reached by an between the petitioner and the IOCL and the same points to a conclusion that the IOCL had accepted the petitioner as a Category-I distributor and the petitioner has been permitted to enter into an agreement with IOCL as a Category-I distributor, with the two vehicles owned by the petitioner for transportation of the LPG cylinders. Therefore, by no stretch of imagination, it would be fit the mount of IOCL respondents to contend that the petitioner belongs to Category-II inasmuch as by the intervening communications made by the IOCL, the IOCL has permitted the petitioner to walk out from the stipulations, made in the NIT and a new contract by sub silentio has been entered into.

[8] By the request letter submitted by the petitioner online dated 25.01.2020, the petitioner had made a request for modification of the categorization, pursuant whereto, the Manager, sales and the DGM, sales , IOCL of the IOCL made two online communications to the DGM, Operation, IOCL dated 25.01.2020 and 31.08.2020, requesting the said authority to accede to the request, tendered by the petitioner. The said request letters induced the petitioner to lay her offer as Category-I and the non-conveyance of the decision sought for by the petitioner and the subsequent issuance of the letter of acceptance dated 25.05.2021 and the letter of intent dated 18.06.2021 led to formation of the contract by silence, applying the principle of sub- silentio.

[9] Mr. Deb, learned senior counsel has further submitted that all through the petitioner has been carrying on business of LPG cylinders with the IOCL as a distributor, falling in Category-I and therefore, the sudden categorization of the petitioner as Category-II without even asking for an explanation from the petitioner and without recording any reason thereof, is contrary to the basic principles of natural justice and is wholly unsustainable. The petitioner is allowed to be categorized as Category-II distributor, the petitioner would be exposed to make a Security Deposit of Rs.8,40,000/- instead of Rs.1,00,000/- in the event, the petitioner continues as a Category-I distributor.

[10] He has submitted that the work order dated 17.08.2021 does not fit the mouth of the IOCL respondents to contend that the impugned letter dated 25.08.2021 is justified and therefore, the IOCL respondents cannot be permitted to take the umbrage of the terms and conditions of the NIT to dislodge the claim of the petitioner. As such, the respondents-IOCL be directed to revoke the impugned letter dated 25.08.2021 and thereupon, direct them to forthwith execute an agreement with the petitioner and issue work order in favour of the petitioner.

[11] Mr. B. N. Majumder, learned senior counsel assisted by Mr. R. Saha, learned counsel appearing for the respondents has submitted that the petitioner has mentioned that a communication was sent to Manager LPG-sales on 25.01.2020 which is not true because the said communication was sent on 25.08.2020, Since the tender was already floated on 19.08.2020 and hence the request made by the petitioner in its communication dated 25.08.2020 was not accepted by the IOC authority.

[12] Mr. Majumder, learned senior counsel has submitted that the bid was accepted by the committee based on the tender conditions. As per tender terms, if a distributor offers a Cat-I (6-wheelers) truck, whereas the tender requires him to place a Cat-II truck, the same will be treated as a transporter truck only. In case an LPG distributor offers 342 capacity trucks for own use, whereas mentioned capacity in Annexure-A is 525, the offered trucks would be considered as normal transporter owned truck and would be evaluated accordingly. In all the above cased, distributors shall fulfill the other tender conditions including security deposit as per enhanced rates.

[13] Hence, though the bids were accepted by IOC authority it is nowhere mentioned in any of the communications made by the authority to the petitioner that the trucks offered by the petitioner were accepted as own use truck. The petitioner while submitted bill of quantity had not offered any rate under Cat-II. The petitioner had only quoted against Cat-I truck. Hence, the petitioner was advised to offer additional trucks under Cat-I as a transporter only as per tender terms.

[14] The distributor was advised by the IOC authority that the truck would be considered as a transporter truck. Hence the final work order was not issued till submission of the full security deposit as per tender terms. The physical verification of trucks is conducted only to verify the suitability of the truck vis-à-vis tender terms and conditions as well as verification of original documents. The bid was accepted by the committee based on the tender conditions. As per tender terms, if a distributor offers a Cat-I (6 wheeler) trucks whereas, the tender requires him to place a Cat-II truck; the same will be treated as a transporter truck only.

[15] Mr. Majumder, learned senior counsel has submitted that in the present case the work order was issued inadvertently mentioning own use truck. Accordingly, when the said error comes forward to the respondent authority, vide its email dated 25.08.2021 issued by the IOC authority, the distributor was advised that the truck would be considered as a transporter truck and the differential security deposit was also advised to be remitted to IOC.

[16] The work order is yet to be issued to the petitioner. Moreover, the transportation contract agreement is yet to be signed by and between the IOC authority and the petitioner. Hence, it cannot be construed that a concluded contract has been reached between the parties.

The petitioner is basing its plea in the writ petition only on an inadvertent error in the LOI, issued by the IOC authority which was subsequently informed to him vide email dated 25.08.2021.

[17] The tender was floated by the IOC authority as per IOC requirement and necessity. It does not confer any rights upon the petitioner to insist the IOC authority to modify and alter the requirements of the authority as framed in the said tender at the wish of the petitioner’s advantage. It is further submitted that the petitioner was free to quote or not to quote in the tender and there was no pressure or any such expectation from the side of the respondents since, the tender was floated in rem.

[18] Once the petitioner participated in the tender process, the IOC authority did not reject the trucks offered by the petitioner. All post LOI/LOA formalities were carried out in terms of the tender, floated by the IOC. The petitioner was only advised to submit the differential amount as security deposit as per the tender terms, nothing more than that. The number of trucks so required for a particular distributor is calculated based on the average monthly sales of the distributor, turnaround time of trucks (plant of distributorship go-down and back) and halting time of trucks at distributor end. Own use trucks referred above are those trucks offered by the Indane Distributors for carrying their own loads for operating in established L-1 rate being finalized against this tender and the transporter trucks are offered by normal transporters and have to ply to any distributor. Hence, this writ petition needs to be dismissed.

[19] In view of above discussion and after perusing the material evidence on record, it reveals that vide order dated 01.09.2021, Division Bench of this Court had observed thus, “the petitioner had responded to

a tender floated by Indian Oil Corporation Limited (IOCL) for transportation of Liquefied Petroleum Gas (LPG) cylinders. Petitioner was found eligible and the rates were also found competitive. The petitioner’s tender was, therefore, accepted. In the tender, the petitioner had offered three 6-wheeler trucks for transportation purpose. The IOCL, however, by the impugned communication, dated 25[th] August 2021, conveyed to the petitioner that the petitioner had to offer Category-II trucks (10-wheeler) for transportation. Since the petitioner has offered Category-I truck (6-wheeler), in view of NIT terms, the truck will be treated as a transport truck only.

The petitioner was thereupon requested to submit the Bank guarantee for the remaining amount of a sum of Rs.7,40,000/- towards the security deposit after which the trucks of the petitioner can be inducted. The case of the petitioner is that all along the IOCL was aware that the petitioner can offer only 6-wheeler trucks for transportation. The approach road leading to the godown is not wide enough to permit entry and exit of a 10-wheeler truck. Under such circumstances, having accepted the petitioner’s tender, the IOCL now cannot turn around and place the petitioner in Category-II.”

[20] This Court at this point may take the reference of communication dated 16.04.2021 (Annexure-12 to the writ petition) issued by the IOCL which would unambiguously reveal that the IOCL has treated the offer of the petitioner as Category-I and there is nothing to suggest that the petitioner has been considered as normal transporter owned truck. Further, while issuing the letter of acceptance dated 25.05.2021, the petitioner has been treated as Category-I as a distributor other than own load.

[21] Further, the General Manager, LPG-OPS of the IOCL caused a verification of the bank guarantee, furnished by the petitioner with the banker, namely, State Bank of India, in furtherance, whereof, the Assistant Manager (Credit) SBI, Arundhati Nagar Branch made a communication dated 02.07.2021 thereby, confirming the bank guarantee furnished by the petitioner.

[22] In view of above, the present writ petition stands allowed treating the petitioner’s case under Cat-I by setting aside the impugned order dated 25.08.2021.

JUDGE

CHIEF JUSTICE (ACTING)

A.Ghosh