JUDGMENT :

ARUN DEV CHOUDHURY, J.

1. Heard Mr. P.K. Goswami, learned Senior Counsel assisted by Mr. P. Choudhury, learned counsel for the petitioner. Also heard Mr. J. Roy, learned Senior Counsel assisted by Mr. N. Deka, learned standing counsel for the Numaligarh Refinery Ltd.

2. The Challenge in the writ petition:

(I) The present writ petition is filed assailing clause 2.0, 6.0, 7.1, 8.1 and 16 of the e-notice dated 01.07.2022 issued by the Numaligarh Refinery Ltd (hereinafter referred to as NRL) for appointment of Wax Distributor in six new locations, namely, Agartala, Ahmadabad, Bhupal, Kanpur, Patna and Amritshar. However, during the course of argument, the petitioner has given up the challenge to the clause 2.0, 7.1, 8.1 and to clause 16, however, the challenge to clause No. 6 is being urged by the learned counsel for the petitioner. This court under its order dated 21.10.2022 issued notice to the respondent Nos. 1, 2 and 3. However, no notice was issued to the private respondents.

(II) The petitioner is a registered partnership firm and is engaged in business of supply of polymers, plasticizers, Waxes, industrial and chemical raw materials and finished petroleum products and is an existing distributor of Numaligarh Refinery Ltd. for paraffin wax product and such distributorship was granted by virtue of an agreement executed in the year 2015 and same is extended till 2025. The petitioner is not bidder in respect of the e-notice in question but alleges disruption of level playing field.

3. The Arguments Advanced on behalf of the petitioner:

Mr. Parthiv K. Goswami, learned Senior Counsel argues the Followings:

(I) Clause 6 is violative of the fundamental and the Constitutional right of the petitioner inasmuch as the same would eventually drive the petitioner out of the business.

(II) The clause 6, permitting multiple distributors would result in a comparative cost advantage to the distributors of IOCL products, who could sell at a laser price and undercut market of the petitioner and other distributors of respondent No. 1. In support of such contention, Mr. Goswami highlights the paragraph 12 and paragraph 18 of the writ petition and the statement showing the price advantage of the IOCL distributors.

(III) Mr. Goswami further contends that as the statements made at paragraph 18 and paragraph 22 of the writ petition are not denied by the respondent NRL and therefore, it is now an admitted fact that the distributor of IOCL wax are having cost advantage and if such distributors are allowed to participate or allowed to be distributors of NRL simultaneously, they will have cost advantage and eventually the petitioner will be out of the market.

(IV) The provision of clause 23 and 24 of the distributorship agreement entered into by the petitioner are similar to that of the proposed agreement for the prospective dealers, which debars multiple distributorship under different OIL companies. Though the present petitioner has sought permission to be distributor of multiple dealership as per provision of the said clauses i.e. clause 23 and 24, however, since 2014 the NRL has not granted consent to any distributor of NRL to be a distributor of the another company. Thus the said clause 24 has been understood by all the parties including the NRL to operate as a bar to multiple distributorship under different Oil Companies.

However, from the affidavit-in-opposition filed by the respondent, it is clear that now the Respondent No. 1 is trying to shift its stand by taking a contrary position that the said clause 24 is not an absolute bar and they would have no objection to IOCL distributor being appointed as a NRL distributor so long as the said IOCL distributor is able to uplift the assured quantity under NRL distributorship agreement. Such stand is unreasonable, arbitrary and is discriminatory, submits Mr. Goswami, learned Senior Counsel.

(V) It is the further argument of Mr. Goswami that such stand of the respondent No. 1 is also inconsistent with Clau