Dismissed

Rajputana Transport Company v. Indian Oil Corporation Limited

Rajasthan HC8 Aug 2024CW/5469/2024

Case brief

AI extract

What is this about?

The single judge of Rajasthan High Court rejected a writ petition challenging the grant of tender work order to respondents. The court held the petition barred by constructive res judicata as a crucial clarification letter from PESO was available and not challenged in the earlier dismissed writ petition.

What did the court decide?

The clarification letter dated 20.05.2022 and the writ petition were dismissed.

Rajputana Transport Company Vs Indian Oil… — Contract and Commercial Disputes | Rajasthan HC (2024)

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[2024:RJ-JD:32626]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Writ Petition No. 5469/2024

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Rajputana Transport Company, Through Its Proprietor Bhanwar Singh Champawat S/o Shri Malam Singh Champawat, Aged About 41 Years, R/o 56, Shiv Colony, Shiksargarh, District Jodhpur, Rajasthan.

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----Petitioner

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Versus

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Indian Oil Corporation Limited, Through Its Nodal Officer, Rajasthan State Office, Indian Oild Bhawan, Adarsh Nagar Rd. Ashok Chowk, Adarsh Nagar, Jaipur, Rajasthan 302004

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Aagolai Goods Carrier, Having Its Principal Place Of Business At A 13, Shramikpura, Masuriya, Jodhpur Through Its Partners - 2/1 Smt. Monika Choudhary W/o Mukesh Choudhary, Aged 36 Yrs, 2/2 Shri Barkat Khan S/ o Baktoo Khan, Aged 52 Yrs 2/3 Shri Saroop Ram Bishnoi S/o Parhalad Ram Bishnoi, Aged 42 Yrs

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M/s Jethi Devi, Through Its Proprietor Smt. Jethi Devi W/ o Pukhraj Choudhary, R/o Dughdh Colony Ke Peechey, Balotara District Barmer (Raj.).

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Ramnivas Chaudhary, Manager (Operations), Indian Oil Corporation Depot., Salawas, District Jodhpur (Raj.).

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Indian Oil Corporation, Through Its Secretary, Northern Regional Office, Indian Oil Bhawan, Yusuf Sarai, New Delhi - 110016

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Chief Controller Of Explosive, A Block, Cgo Complex, Firth Floor, Seminary Hills, Nagpur - (Maharashtra).

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Joint Chief Controller Of Explosive (Petroleum And Explosive Safety Organisation), North Circle, Hall No. 502 And 502, Level - 5, Block Iind, Old Cgo Complex, Nh 4, Faridabad, Pin 121001

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----Respondents

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For Petitioner(s)	:	Mr. Sunil Joshi Mr. Ritu RajSingh Rathore
For Respondent(s)	:	Mr. Mukesh Rajpurohit, Dy.S.G. with Ms. Dimple Rajpurohit Mr. Nishant Bora
		Mr. Sanjeet Purohit with
		Mr. Mudit Nagpal.

(2 of 12)

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HON'BLE MS. JUSTICE REKHA BORANA

Order

Reportable

08/08/2024

The present writ petition has been preferred claiming the following reliefs:

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i. LOIs issued to the respondent No.2 and 3 in respect of notice inviting tender NO.RCC/NR/RSO/OPS/PT-105/21-22 may kindly be quashed and set aside

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ii. By an appropriate writ/order/direction clarification letter dated 20/5/22 (Annx 2) may kindly be quashed and set aside

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iii. Issue an appropriate writ/order/direction to the respondent corporation to issue LOI/work order in favour of the petitioner.

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iv. Issue an appropriate writ/order/direction to the respondent corporation to issue LI/work order in favour of the candidate/firm who is next in line of waiting.

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v. Issue an appropriate writ/order/direction to the respondent corporation not to consider discrepancy letter dated 1/11/21 (Annx 8) as PESO Licence.

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vi. Issue an appropriate writ/order/direction in the nature of mandamus directing the respondent No.5 to initiate a proper enquiry against the erring officials and the Respondent No. 4 because of which respondent No.2 and respondent No.3 were illegally issued LOIs;

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vii. Issue an appropriate writ/order/direction in the nature of mandamus directing the respondent No.1 to disqualify the respondent No.2 and 3

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from future bidding and further directing the respondent No.1 to consider afresh the bid of the petitioner along with other bidders;

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viii. Any other writ, order or direction which this Hon’ble court deems just and proper in the facts and circumstances of the case may kindly be allowed to petitioner;

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ix. Costs of the petition may be awarded to the petitioner.

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The brief facts are that in pursuance to an NIT issued by the respondent – Indian Oil Corporation Limited (hereinafter referred to as ‘IOCL’), after completion of the tender process, the work orders were issued in favour of respondent Nos.2 & 3 in the month of May 2022. A writ petition being S.B. Civil Writ Petition No.6816/2022 was preferred by the present petitioner challenging the said work orders. The ground raised in the said writ petition was that respondent Nos.2 & 3 did not have a valid Petroleum & Explosives Safety Organisation (hereinafter referred to as ‘PESO’) Licence on the date of submission of bid and hence, in terms of Clause 21 of the bid/tender document, they ought to have been disqualified. However, the Writ Petition as preferred by the petitioner was dismissed vide order dated 18.09.2023 and a Special Appeal being D.B. Spl. Appl. Writ No.787/2023 was preferred against the same. The said appeal was dismissed as withdrawn with the following observations:

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“After attempting to argue the matter on merits for quite some time, learned counsel for the appellant has submitted that he wants to withdraw this appeal with liberty to the appellant to challenge the order dated 20.05.2022 passed by the respondent Nos. 6 & 7.

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The Spl. Appeal Writ is dismissed as withdrawn with liberty as prayed for, if law permits to do so.”

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In view of the alleged liberty granted by the Hon’ble Division Bench to challenge the order dated 20.05.2022, the present writ petition has been preferred.

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The case of the petitioner is that as per Clause 21 of the bid/tender document, the tank trucks quoted in the tender document ought to have valid documents such as PESO Licence, RTO registration certificates etc. at the time of submission of bids. The said clause further prescribed that temporary PESO permission will not be considered in LOT-1 and LOT-2 during the evaluation of the tender.

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Learned counsel for the petitioner submitted that admittedly, the respondent-firms did not have a valid PESO Licence at the time of applying and it was only on 15.11.2021 that a valid PESO Licence was granted to them. In absence of any valid PESO Licence, their bid could not have been evaluated and as a consequence, no LOA could have been issued in their favour.

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Learned counsel further submitted that the earlier writ petition as preferred by the petitioner was rejected only on the count that the PESO itself clarified vide its letter/order dated 20.05.2022 that the permissions as granted on 01.11.2021 were treated to be permanent licences. As inadvertently, the letter/order dated 20.05.2022 was not challenged in the earlier writ petition, the liberty to challenge the same was asked for by the petitioner and the Hon’ble Division Bench granted the same and hence, challenge to the letter/order dated 20.05.2022 deserves to be entertained.

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Per contra, Mr. Mukesh Rajpurohit, learned Dy.S.G appearing for respondent Nos.6 & 7, Mr. Sanjeet Purohit appearing

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for the private respondent and Mr. Nishant Bora appearing for IOCL submitted that the present writ petition cannot be entertained, the same being hit by principle of constructive res judicata .

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Learned counsel for the respondents submitted that the letter/order dated 20.05.2022 was very much in existence and even considered by the Court while deciding the earlier writ petition. Rather, the said order had been made a basis for decision of the said writ petition. Meaning thereby, the petitioner was well aware of the said order as the pleadings pertaining to the said order were very much made and were available on record but the petitioner did not choose to challenge the same or to raise any objection qua the same at that point of time. Therefore, in terms of the settled position of law, the question which could and ought to have been raised in the previous round of litigation, if not raised, shall not be legally opened and should not be allowed to be urged.

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Learned counsel Mr. Sanjeet Purohit, in support of his submissions, relied upon the following judgments passed by the Hon’ble Apex Court :-

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1. Shiv Chander More & Ors. vs. Lieutenant Governor & Ors.; (2014) 11 SCC 744

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2. Forward Construction Co. & Ors. vs. Prabhat Mandal (Regd.), Andheri & Ors.; (1986) 1 SCC 100

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3. Devilal Modi vs. Sales Tax Officer, Ratlam & Ors.; AIR 1965 SC 1150.

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Responding to the above submissions, learned counsel Mr. Sunil Joshi appearing for the petitioner submitted that in the earlier writ petition, there was no adjudication on the document

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dated 20.05.2022 and only a view was expressed by the Court. The said document was neither under challenge in the said writ petition nor the contents of the same were taken into consideration by the Court for adjudication of the dispute. Therefore, neither the said issue was directly under consideration in the earlier writ petition nor the same was explicitly decided so as to operate constructive res judicata .

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In support of his submissions, learned counsel for the petitioner relied upon the judgment passed by the Division Bench of High Court of Madhya Pradesh in the case of Durga Prasad @ Durgadas & Ors. vs. State of Madhya Pradesh & Anr.; Misc. Petition No.116 of 2020 decided on 24.02.2022.

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Learned counsel further advanced certain arguments on merits of the petition but this Court is not discussing the same for the reasons as assigned in the subsequent paras.

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Heard learned counsels for the parties and perused the material available on record.

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In view of the facts of the present matter, this Court is not inclined to go into the merits of the letter/order dated 20.05.2022 as this Court is of the clear view that the present writ petition is clearly hit by the principle of constructive res judicata . It is not that the factum of the clarification letter/order dated 20.05.2022 was not before the Court while deciding the earlier writ petition No.6816/2022.

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Para 10.2 of the judgment dated 18.09.2023 passed in Writ Petition No.6816/2022 reads as under:

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“10.2. This Court further observes that PESO (license issuing authority) itself admitted that

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[2024:RJ-JD:32626]

[CW-5469/2024]

after the permissions were given, only calibration certificate was required, and the same was not a mandatory document for issuance of license, but an additional confirmation, and thus, the permission had been initially given for a period of one month; thereafter once the calibration certificate was received, on 15.11.2021 the licenses were granted with validity till 14.11.2026; a clarification letter had further been issued by the PESO on 20.05.2022 with regard to the permissions given to respondents no.2 & 3 on 01.11.2021 stating therein that the same were permanent licenses and thus, be treated as such; relevant portion of communications dated 20.05.2022 is reproduced as hereunder:

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“Please refer to your letter no. nil dated 20/5/2022 regarding the subject matter, it is clarified that permissions have been issued by this office on 01/11/2021 to transport petroleum product in the following tanker-

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Aforesaid permissions for these tankers shall be treated as permanent licence to transport petroleum product in tankers and have the same effect as permanent licence. ””

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A bare perusal of the observations as made by the Court in the aforesaid para makes it clear that the Court specifically took into consideration the clarification letter dated 20.05.2022. Further, in para 10.4, the Court, while considering the said clarification letter dated 20.05.2022, observed as under:

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“10.4. In the above backdrop, this Court observes that since the permissions were granted on 01.11.2021 for carrying petroleum products of Class A/B, and further, on 20.05.2022, the PESO itself clarified that the said permissions were to be treated as permanent licenses, therefore, it is clear that there was no violation of Clause 21 of the Tender and that the said permissions were not temporary licenses, as claimed on behalf of the petitioners.”

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Meaning thereby, the contents of letter/order dated 20.05.2022 were not only pleaded in earlier writ petition, but the document was even relied upon and made the basis of decision of the said writ petition. Therefore, it cannot be concluded that the petitioner was not aware of the clarification letter dated 20.05.2022 during the earlier round of litigation or that he had no opportunity/liberty to challenge the same.

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Admittedly, the clarification letter was issued on 20.05.2022 and the writ petition was decided on 18.09.2023. It is not in dispute that the said clarification letter was placed on record in the earlier writ petition. Had the petitioner been aggrieved of the same, it could have laid a challenge to the same at that stage itself but he did not prefer to do so. Be that as it may.

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So far as the alleged liberty granted by the Hon’ble Division Bench to challenge the clarification letter/order dated 20.05.2022 is concerned, the same cannot be termed to be a blanket liberty granted by the Hon’ble Division Bench. A bare perusal of the order passed by the Hon’ble Division Bench (as reproduced in the preceding paras) makes it clear that on a prayer

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been made by the appellant to withdraw the appeal with liberty to challenge the order dated 20.05.2022, the special appeal was dismissed as withdrawn with liberty as prayed for, with a proviso, if the law permits to do so. Meaning thereby, it was not a blanket liberty granted by the Hon’ble Division Bench but was subject to the condition if it was permissible under law.

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So far as the position of law is concerned, the Hon’ble Apex Court in the case of Forward Construction Co. (supra) held as under:

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“. . . . . . . . An adjudication is conclusive and final not only as to the actual mater determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or defence. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided.”

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In the case of Devilal Modi (supra), the Hon’ble Apex Court while dealing with the aspect of applicability of the principle of constructive res judicata to writ proceedings, observed as under:

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“. . . . . . . . This rule postulates that if a plea could have been taken by a party in a proceedings between him and his opponent he would not be permitted to take that plea against the same party in a subsequent proceeding which is based on the

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same cause of action; but basically, even this view is founded on the same considerations of public policy, because if the doctrine of constructive

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res judicata is not applied to writ proceedings, it would be open to the party to take one proceeding after another and urge new grounds every time; and that plainly is inconsistent with considerations of public policy to which we have just referred .”

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The above principle was reiterated by the Hon’ble Apex Court in the case of Shiv Chander More (supra), wherein the Hon’ble Apex Court held as under:

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“24. It is in the light of the above authoritative decisions of this Court no longer open to the appellants to contend that the principles of constructive res judicata would not debar them from raising the question which, as observed earlier, could and indeed ought to have been raised by them in the previous round of litigation. The High Court was, in that view of the matter, perfectly justified in holding that the plea sought to be raised by the appellants in the purported exercise of liberty given to them by the order of this Court dated 9-4-2008 in Lt. Governor vs. Shiv Chander More was not legally open and should not be allowed to be urged.”

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The position of law which emerges from the aforementioned precedents, can be summarized as under :

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(i) Where the parties had an opportunity of controverting a matter, that should be taken to be the same thing as if the matter had been actually controverted and decided.

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(ii) The question which could and indeed ought to have been raised in the previous round of litigation, if not raised, the same shall not be legally open and cannot be allowed to be urged in the subsequent litigation, the principle of constructive res judicata would debar so.

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(iii) If a plea could have been taken by a party in proceeding between him and his opponent, he would not be permitted to take that plea against the same party in a subsequent proceeding which is based on same cause of action.

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(iv) The doctrine of constructive res judicata would apply even to writ proceedings as if not applied so, it would be open to the party to take one proceeding after another and urge new grounds every time which would be inconsistent with considerations of public policy.

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In view of the above settled position of law, this Court is of the clear opinion that the clarification letter/order dated 20.05.2022 could have very well been challenged by the petitioner in the earlier round of litigation. The same being not done, it is now not open to the petitioner to contend that the principles of constructive res judicata would not debar him from raising the said question/challenging the said order.

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So far as the judgment relied upon by learned counsel for the petitioner in the case of Durga Prasad @ Durgadas (supra) is concerned, the same would not be of any help to the petitioner as therein, the order in question was a non-speaking order without indicating the grounds or the reasons on basis of which the judgment in the earlier round of litigation was passed.

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Therefore, the Court therein observed that there was no material available on record to hold that the order in the earlier round of litigation would operate as a constructive res judicata .

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In view of the above analysis and the settled position of law, this Court is not inclined to interfere with the impugned clarification letter/order dated 20.05.2022 and the writ petition is hence, dismissed .

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Stay petition and all pending applications, if any, stand disposed of .

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(REKHA BORANA),J

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Sphophaliya/T.Singh/-

Rajputana Transport Company v. Indian Oil Corporation Limited

Case brief

What is this about?

What did the court decide?

Rajputana Transport Company v. Indian Oil Corporation Limited

Case brief

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