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IN THE HIGH COURT OF JUDICATURE AT PATNA
RAJEEV RANJAN PRASAD, J.
Poonam Devi – Petitioner
Versus
Bharat Petroleum Corporation Ltd. and Others – Respondents
Civil Writ Jurisdiction Case No. 330 of 2019
Decided On : 05-10-2020
Government Contract – LPG Distributorship – Termination of LPG Distributorship granted under Pradhan Mantri Ujjwala Yojana (PMUY) on ground of irregularities – Even though there is an arbitration clause in agreement, a writ application may be entertained if a challenge to impugned order based on violation of principles of natural justice is apparently fit to succeed – There is no reason to interfere with impugned order on the ground of violation of principles of natural justice – There is no case of petitioner that non-supply of copy of inspection report has in any way prejudiced case of petitioner – In facts and circumstances of present case plenary and discretionary jurisdiction of this Court under Article 226 of Constitution of India need not be exercised on the ground of violation of principles of natural justice – Besides, there being no pleading and material before this Court on the basis of which plea of waiver may be decided, writ application is bound to fail on this ground as well – Writ application disposed of with liberty to petitioner to seek her remedy in terms of arbitration clause contained in agreement. (Paras 33, 44, 47, 52 and 53)
Constitution of India – Articles 14 and 226 – Distinction between a judicial review in matter of awarding of contract in light of Article 14 of Constitution of India which is wide and enjoins public authority to act fairly, reasonably, rationally by excluding arbitrariness and power of judicial review in a concluded contract which has been held limited and is not all pervasive like matter of awarding of contract – In exercise of judicial review court can intervene even in respect of concluded contracts if contract is statutory contract or there is a public law element in it – There is no absolute bar to maintainability of writ petition even in contractual matters where there may be disputed questions of fact or even monetary claim is raised but at the same time discretion lies with High Court under which it can refuse to exercise discretion. (Para 45)
Waiver – It is an act of surrender of benefit or privilege – Person against whom plea of waiver is raised is required to be fully cognizant of his rights before waiving off such rights – Under Indian law neither consideration nor an agreement would be necessary to constitute waiver – Waiver is a question of fact. (Paras 49 and 52)
JUDGMENT :
RAJEEV RANJAN PRASAD, J.
1. Petitioner in the present case has moved this court in it’s extraordinary writ jurisdiction for the following reliefs:
“(i) To quash the order contained in letter vide Ref. LPG. ER. PATN-6 OM SAI BHARAT GAS dated 27.10.2018 issued by Respondent No. 2, by which Bharat Gas (Liquefied Petroleum Gas) Distributorship (Domestic and Commercial) Agreement dated 15.03.2013, entered between the Petitioner and the Respondent Bharat Petroleum Corporation Ltd. has been terminated.
(ii) To direct the Respondent to reinstate the LPG Distributorship of the Petitioner which is running in the name and style of M/s Om Sai Bharat Gas, Opposite Bata Factory, Gandhi Road, Bataganj, Digha, District-Patna and to make the said distributorship operational.”
Case of the petitioner
2. Petitioner was appointed as a Bharat Gas Distributor by respondent Bharat Petroleum Corporation Limited (hereinafter referred to as the ‘BPCL’ or respondent no. 1) for sale of Liquefied Petroleum Gas (LPG) in cylinders for household consumers and commercial consumers in the territory or Distribution area of Patna Municipality in the district of Patna. The Distributorship was running in the name and style of M/s OM SAI BHARAT GAS as a proprietorship firm of the petitioner. The Distributorship Agreement dated 15.03.2013 (Annexure ‘1’ to the writ application) got executed between the parties.
3. The Government of India launched Pradhan Mantri Ujjwala Yojana (PMUY) in the month of March 2016 whereunder free LPG connections were to be provided by the Oil Manufacturing Companies (OMCs) to the women belonging to the Below Poverty Line (BPL) household. The guidelines of PMUY has been issued by the Ministry of Petroleum and Natural Gas, Government of India, a copy of the Guideline is Annexure ‘2’ series to the writ application.
4. It is the specific case of the petitioner that under the Scheme Guideline (Annexure ‘2’) a duty has been cast upon the OMCs to match the application against the Socio-Economic Castes Census (SECC) which exercise has been undertaken in the year 2011. It was the duty of the OMCs to match the application against the database of SECC-2011 and after ascertaining their BPL status, enter the details into a dedicated OMCs wave portal through a Login Password given by the OMCs. The modalities in this regard has been approved by the Ministry of Petroleum and Natural Gas, Government of India and in this regard heavy reliance has been placed by learned Senior Counsel for the petitioner on Annexure ‘2’ series which provides for the scheme for release of free connection to the BPL women. Paragraph ‘6’ thereof provides for implementation modalities of the scheme.
5. It is his submission that under the Scheme it is the OMCs who will release the connection to women of BLP families after completing the procedure detailed in the Scheme. The OMCs shall after completing the procedure submit their claims for the connections released from 01.04.2016. The claim shall be lodged on quarterly basis and it will be submitted to PPAC (Petroleum Planning & Analysis Cell) who will scrutinize and forward the claims to Ministry of Petroleum and Natural Gas which will in turn reimburse the claim of OMCs.
6. Learned Senior Counsel representing the petitioner has thus taken this court through Annexure ‘2’ series and again through Annexure ‘3’ to demonstrate that the identification of beneficiary is the work of OMCs and not of a LPG Distributor like the present petitioner.
7. It is submitted that the officials of Patna LPG Territory of respondent no. 1 instead of following the procedure/guidelines of the respondent no. 1 called upon the Distributor to do the exercise and for this purpose respondent no. 1 provided ‘SECC’ Data in Pen Drive for processing the Ujjwala KYC application form and for searching names of prospective customers from ‘SECC’ List. The benefic
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