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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
VIPIN SANGHI, ALOK KUMAR VERMA, JJ.
Bharat Petroleum Corporation Limited and Another - Appellants
Versus
Deepak Saini & Another - Respondents
Special Appeal No. 51 Of 2023
Decided On : 24-03-2023
Due Diligence - Retail Outlet Location - [BPCL Retail Outlet Dealership] - [BPCL Act, Section 4(1)(b), Section 5(1)(a)] - The court discussed the due diligence conducted by the appellants in relation to the location of the plot offered by the respondent for setting up the retail outlet. The court highlighted the failure of the appellants to properly conduct due diligence and their satisfaction with the plot falling within the advertised stretch, leading to the issuance of the Letter of Intent and the respondent's investment in establishing the retail outlet. The court emphasized that since the respondent was not found to be party to any fraud or misrepresentation, they were entitled to the relief granted by the learned Single Judge.
Fact of the Case:
The case involved a dispute over the location of a plot offered for setting up a retail outlet. The respondent was granted a Letter of Intent, invested in establishing the outlet, and obtained necessary clearances. Subsequently, the appellants raised concerns about the location not falling within the advertised stretch, leading to the rejection of the application and withdrawal of the Letter of Intent.
Finding of the Court:
The court found that the appellants failed to conduct proper due diligence and were satisfied with the plot's location before issuing the Letter of Intent. Since the respondent was not found to be involved in any fraud or misrepresentation, they were entitled to the relief granted by the learned Single Judge.
Issues: 1. Dispute over the location of the plot offered for setting up a retail outlet. 2. Failure of the appellants to conduct proper due diligence.
Ratio Decidendi: The appellants' failure to properly conduct due diligence and their satisfaction with the plot's location led to the issuance of the Letter of Intent and the respondent's investment in establishing the retail outlet. Since the respondent was not found to be party to any fraud or misrepresentation, they were entitled to the relief granted by the learned Single Judge.
Final Decision: The appeal was dismissed, and the relief granted by the learned Single Judge was upheld in favor of the respondent.
JUDGMENT :
(Vipin Sanghi, J.)
1. Issue notice.
Learned counsel appears and accepts notice on behalf of the respondents.
2. Counsel for the respondents fairly does not oppose the application seeking condonation of delay in filing the present appeal. Accordingly, the delay condonation application (IA No. 01 of 2023) is allowed. The delay is condoned.
3. The present special appeal is directed against the judgment rendered by the learned Single Judge, in Writ Petition (M/S) No. 950 of 2020, dated 07.01.2023. By the impugned judgment, the writ petition preferred by respondent No. 1 has been allowed by the learned Single Judge. The orders impugned in the writ petition dated 23.05.2020 and 12.06.2020, issued by the appellants were quashed, and a direction was issued to the appellants to commission the retail outlet of the respondent/writ petitioner on the plot offered by him for the said purpose.
4. The brief facts have been taken note of in the impugned judgment. We reproduce the same here-in- below:
On 25.11.2018, the respondent No. 1, i.e., Bharat Petroleum Corporation Limited (hereinafter referred as BPCL) publish an advertisement inviting applications for grant of Retail Outlet Dealership of BPCL for the location between 17-25 kilometers on the State Highway-28, (Puhana Jhabrera Gurukul Narsan Road), District Haridwar for the persons belonging to the Other Backward Class. The petitioner submitted an application in pursuance of the aforesaid advertisement. On 11.02.2019, the Assistant Engineer, Construction Division, PWD Roorkee issued a letter to the effect that the land offered by the petitioner situates between 17-25 kilometers of the aforesaid road.
On 09.03.2019, the land evaluation committee of BPCL visited the site and after satisfying itself the respondent No. 2 issued the letter of intent in favour of the petitioner. In course of such visit the officials of BPCL satisfying themselves that the location of proposed Retail Outlet is suitable and installed the required assets (machineries etc.) at the proposed site. On 25.04.2019, the Executive Engineer, Construction Division, PWD Roorkee issued a No Objection Certificate, NOC, for establishment/construction of Retail Outlet Dealership of BPCL at the proposed site. The District Magistrate, Haridwar issued the NOC to the petitioner.
On 13.06.2019, the Assistant Engineer, Construction Division, PWD Roorkee wrote a letter dated 13.06.2019 to the respondent No. 2 apprising that the some places mile stones are missing, but at the time of advertisement for petrol pump at the concerned mile stones 17 kilometer was written, as well as the NOC was issued to the petitioner. Thus, the Assistant Engineer, Construction Division, PWD Roorkee, clarified that No Objection Certificate issued to the petitioner is correct. On 15.06.2019, the respondent No. 2 issued a letter to stop further constructions of the petrol pump. Feeling aggrieved by the said order, the petitioner preferred a writ petition before this Court being WPMS No. 1829 of 2019. On 27.08.2019, a Coordinate Bench of this Court disposed of the same by passing the following order:
“7. One thing is apparent that the mile stone has been changed and the exact location of the site of the petitioner is not between 17 to 25 mile stone, but around 15 No. mile stone. This can be a deliberate attempt on the part of the petitioner, who along with certain officials including the officials of the Public Works Department has done this mischief. In case this is so, a serious action must be taken. However, in case the mile stone has been changed due to strengthening and widening of the road, the petitioner has nothing to do with that and minor dislocation of petrol pump within two kilometers will not affect the location.
8. In view thereof, writ petition is disposed of with the direction to the Chief Engineer, Public Works Department to condu
Administrative decisions must be made fairly and cannot be rejected on hyper-technical grounds if the applicant has complied with all requirements and invested in the project.
Respondents cannot impose unadvertised conditions post-application, as the applicant's land met the described criteria, thereby affirming the legitimate expectation of the applicant.
Participant in retail outlet selection via draw of lots has locus to challenge rival's site NOCs for guideline non-conformity, unlike business rivals; IRC/MoRTH guidelines non-mandatory on major dist....
The court confirmed that a specific location's advertisement does not necessitate the land being in a specified village, protecting the applicant's legitimate expectation for dealership consideration....
Competitive harm does not constitute legal injury under 'damnum sine injuria'; disputes involving pure questions of fact should not be adjudicated in writ jurisdiction.
: High Court while exercising powers under Article 226 of Constitution of India cannot sit as appellate court over decision of NHAI more particularly when same has not been challenged.
The court established that IRC Guidelines are directory and do not confer a legal right to challenge the issuance of a Letter of Intent based on proximity.
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