Aishwarya Babu vs Bharath Petroleum Corporation Ltd

P.V.Kunhikrishnan, J

The 1st and 2nd respondents invited applications for the selection of dealers for regular and retail outlets as per Ext.P2 notification. Ext.P1 is the Guidelines for selection of dealers for Regular & Rural Retail Outlets through draw of lots/bidding process. The petitioner is a Schedule Caste woman. The petitioner submitted an application for retail outlet dealership at Teekoy notified as Sl. No.472 in Ext.P2, which is reserved for Schedule Caste. Ext.P3 is the application submitted by the petitioner. As per clause 4(v) of Ext.P1, the applicants would be classified into three groups based on the land offered by them in the application form. In case, the land offered by all the applicants in Group 1 and Group 2 is found not suitable/ not meeting requirements, then these applicants under Group 1 and Group 2, along with the applicants under Group 3 (who did not offer land along with the application) would be advised by the OMCs to provide suitable land. In case, the applicants failed to provide suitable land within the prescribed period or the land provided is not found meeting the laid down criteria, the applications would be rejected.

It is the case of the petitioner that there was no applicants in Group 1 and the petitioner submitted application in Group 2. There were eight applicants altogether and five of them were in Group 2 and three of them in Group 3. The dealership will be selected through draw of lot and in the first draw of lot, Nithindas.N was selected and on further verification, the 2nd respondent rejected his application. In the second draw of lot, the 3rd respondent was selected. It is the case of the petitioner that as per clause 14(H) of Ext.P1 Guidelines, the 3rd respondent is not eligible for consideration. It is the case of the petitioner that the land offered by the 3rd respondent contain crossing of High Tension Overhead electric line. It is the further case of the petitioner that the 2nd respondent rejected the application of the 3rd respondent and on that basis, the 2nd respondent transferred the 3rd respondent to Group 3.

According to the petitioner, after rejection of application of the 3rd respondent, there are three applicants (including the petitioner) in Group 2 category and those applicants are entitled for dealership by draw of lot. It is the further case of the petitioner that after rejecting the application of the 3rd respondent in Group 2, the 1st and 2nd respondents selected him for dealership and published it in their website. Ext.P5 is the notification published in the website. It is the further case of the petitioner that the officers under the 2nd respondent in collusion with the 3rd respondent managed to induct a certificate that the overhead electric line across the land offered by him is a 'dead' one and on that basis he was given dealership after rejecting his application. It is also the further case of the petitioner that as per Ext.P2 notification inviting dealership, the land shall be at Teekoy in Erattupetta-Vagamon Road within 2 kms from Teekoy. It is the case of the petitioner that the property offered by the 3rd respondent is not within 2 kms from Teekoy and even then, the 1st and 2nd respondents are proceeding to allot the dealership to the 3rd respondent. In such circumstances, this writ petition is filed with the following prayers :

i. "Issue a writ of Mandamus or any other appropriate writ order or direction directing the 1st and 2nd respondents to conduct selection of dealership for conducting Petroleum Retail Outlet at Teekoy notified as per Serial No.472 in Exhibit P2 by draw of lot among the remaining applicants in Group 2 after transferring the 3rd respondent from Group 2 to Group 3 as notified in Exhibit P4.

ii. Issue appropriate writ order or direction calling for the order leading to the sanctioning of Petroleum retail outlet at Teekoy to the 3rd respondent as notified in Exhibit P5 and quash the same.

iii. Issue such other writ order or direction that this Hon'ble Court may deem fit and proper in the facts and circumstance of the case."

Heard the learned counsel for the petitioner, learned Standing Counsel for respondents 1 and 2 and Adv.K.K.Chandran Pillai, the senior counsel on behalf of the 3rd respondent.

The counsel for the petitioner reiterated his contentions in the writ petition. Two contentions are mainly raised by the petitioner to submit that the 3rd respondent is not eligible for consideration as per Ext.P2 notification. The counsel submitted that as per Clause 14(H) of Ext.P1 Guidelines, the lands through which no High Tension Line is passing alone will be preferred. It is the definite case of the petitioner that there is a High Tension Line passing through the land which is offered by the 3rd respondent. The second contention of the petitioner is that the property offered by the 3rd respondent is beyond 2 kms from Teekoy town and hence, as per Ext.P2 notification, the 3rd respondent is not entitled to be considered for the dealership. The counsel takes me through Ext.P7 produced in IA No. 1/2019 which is an information furnished by the Asst. Engineer (PWD).

The Standing Counsel who appeared for the 1st and 2nd respondents submitted that when Ext.R3(e) was issued to the 3rd respondent, the 3rd respondent informed the 2nd respondent as per Ext.R3(f) that KSEB has given approval for dismantling the 11 KV High Tension Line based on his request because it was a deadline. A certificate issued by the Asst.Engineer (Electrical Section) Teekoy [Ext.R3(g)] was also produced along with Ext.R3(f). In the light of the same, there is no prohibition for accepting the application of the 3rd respondent as per Clause 14(H) of Ext.P1 Guidelines. As far as the distance from Teekoy town mentioned in Ext.P2 notification is concerned, the counsel for the company submitted that the Land Evaluation Committee visited the site offered by the 3rd respondent and found that land is situated within the limit mentioned in Ext.P2 advertisement. The counsel also relied the judgment dated 31.10.2011 in W.A.No. 1607/2011 and W.A. No.1616/2011. The other decisions relied by the counsel are the judgment dated 20.10.2016 in W.A. No. 276/2014 and the judgment dated 20.10.2016 in W.A.No. 171/2016. The learned counsel also relied the judgment dated 26.7.2018 in W.P.(C.) No. 13230/2013.

The  Senior  Counsel,  who  appeared  for  the  3rd respondent submitted that the contentions of the petitioner are all incorrect. The counsel also submitted that the petitioner obtained a letter of intent for starting a dealership in another place and the same is suppressed in this writ petition. The learned counsel also submitted that in the light of Ext.R3(g), it is clear that the prohibition as per Clause 14(H) of Ext.P1 Guidelines is not applicable in the case of the 3rd respondent. The Senior Counsel also takes me through Ext.P2 advertisement, in which it is not specifically stated about the point from where 2 kms from Teekoy is to be decided. The counsel takes me through paragraph No.9 of the counter affidavit filed by the 3rd respondent.

The short point to be decided in this case is whether the 3rd respondent is eligible for consideration for getting a dealership. The case of the petitioner to object the allotment of dealership to the 3rd respondent is mainly on two points and they are :- 1) As per Clause 14(H) of Ext.P1 Guidelines, the land offered ought not have been accepted because a High Tension Line crossing through that property. 2) The land offered by the 3rd respondent is beyond 2 kms mentioned in Ext.P2 notification.

As far as the 1st point is concerned, I think the same will not stand in the light of Exts.R3(f) & R3(g). Ext.R3(f) is the reply from the 3rd respondent to Ext.R3(e) notice. Along with Ext.R3(f), Ext.R3(g) certificate issued by the Asst. Engineer, Electrical Section, Teekoy is produced. In Ext.R3(g), it is clearly stated that 11 KV three wire line which is passing through the land bearing Survey. No. 170/8/1 owned by Revathi P.G., Pulimoottil House, Theekoy, is a deadline, and it can be dismantled upon the request of the applicant on deposit work basis. In such circumstances, it cannot be said that there is violation of Clause 14(H) of Ext.P1 Guidelines to the land offered by the 3rd respondent. As far as the 2nd ground is concerned, the 3rd respondent has got a definite contention in their counter affidavit. The relevant paragraph of the counter is paragraph 9 and the same is extracted hereunder :

"As regards one other objection raised against my selection contained in para 8 of the writ petition and Ground D, I may be permitted to state that the objection raised on the distance is absolutely incorrect and the said contention will not sustain also. Item No.472 in Ext.P2 is the location in respect of which dispute is raised in this writ petition. The location is notified as "Teekoy (on Erattupettah - Wagamon Road), within 2 Kms. of Tekoy". The said place is within the Kottayam District. The requirement of the notification is that the site should be within 2 Kms. from Teekoy. From which point of Teekoy is not specified in the notification. Teekoy is a busy Village Town extending to about 700 or 800 metres even. It has got different important junctions. One is Teekoy Panchayat Junction and another Teekoy Pallivathukkal Junction. Other important offices are also functioning nearby like Village Office, State Bank of India, Federal Bank etc. Ext.P2 notification doesn't specify that it is from a particular point that 2 Kms. are to be taken. The petitioner has produced an additional document along with 1.A. 1 of 2019 in the above writ petition. That document has absolutely no relevance and it cannot be given any value also to decide the notified place in Ext.P2. The information sought for also is not clear. The answer given is that there is a zero Kms. stone near Teekoy Town opposite a tailoring centre and 2 Kms. taken from that place, it will be upto the Kurisupally curve only. The requirement of Ext.P2 cannot be considered in the above manner. By Teekoy, the common understanding is Teekoy Town and the site offered by me is within 2 Kms. from Teekoy Town and not to be considered from the '0' point. The offered site is within Teekoy Village, Teekoy Panchayat and it is in the Teekoy kara also. The intention of the Oil Companies when they invite applications and in fixing the distance is only to see that the outlets are established near the town/city which is easily accessible to the general public who has to get service from the outlet. In that view of the matter, the site offered by me satisfies the requirement of the notification also. That apart the freedom to close the place and fixation of distance is also within the jurisdiction and discretion of respondents 1 and 2. This Hon'ble Court may not interfere with such discretion and decision of respondents 1 and 2. This Hon'ble Court also may not be able to conduct enquiry to decide such a factual dispute in exercise of the jurisdiction of this Hon'ble Court under Article 226 of the Constitution of India."

A perusal of Ext.P2 notification will show that the location is notified as "Teekoy (on Erattupettah -Vagamon Road) within 2 kms of Teekoy". The requirement as per the notification is that the site should be within 2 kms from Teekoy. As stated by the 3rd respondent, it is not clear from Ext.P2 about the point of Teekoy, from where the distance is to be measured. It is stated by the 3rd respondent that Teekoy is a busy village town extending to about 700 or 800 metres and it has got different junctions and several important offices. The Land Evaluation Committee of the 1st respondent Company visited the site and found that the land situated within the permitted limit as per Ext.P2 notification. When such a finding is there from the Land Evaluation Committee of the 1st and 2nd respondents, the jurisdiction of this Court to interfere with the same is very limited. In the judgment dated 20.10.2016 in W.A.No. 276/2014, a Division Bench of this Court observed like this :

We have gone through Ext.P1 notification. The locality to establish the showroom at Kazhakkuttom finds as item 96 in the said notification, wherein, nowhere it is stated that the showroom can be placed at any place coming under the Kazhakkottom Sub District. On the other hand, it specifies the place or locality as Kazhakkuttom. Admittedly, the appellant has strangely shown the location of the showroom as Kazhakkuttom (though his property is at Attippara) merely because Attippara Village comes within the area of Kazhakkuttom Sub District in Thiruvananthapuram District. Attippara cannot be considered as part of Kazhakkuttom. It is not in dispute that Kazhakkuttom Sub District is having as many as five villages such as Attippara, Kazhakkuttom, Pangappara, Meenamkulam and Kadinamkulam. If the contention of the appellant is accepted, then the persons from Pangappara, Meenamkulam and Kadinamkulam also could have applied. The intention of the first respondent is to establish showroom only at Kazhakkuttom and not in other parts of Kazhakkuttom Sub District.

There cannot be any dispute that an LPG distributor is appointed by the respondent for the purpose of effectively serving LPG customers of the respondent Company. Hence the respondent company is to best judge as to how such service can be made more effective, including by selecting the proper locations for the proposed showroom. It is purely a matter of policy and not liable to be interfered with by the Court, especially when there is no allegation of any malafide on the part of the respondents." (underline supplied)

Similarly, in the judgment dated 31.10.2011 in W.A.Nos. 1607/2011 and 1616/2011, another Division Bench of this Court observed like this :

"4. The learned Single Judge found that even though the location of the appellant is within the Amballur Village, it is not a locality known as Amballur as notified. We do not think, there is any significance for any specific location for starting a retail outlet for sale of petrol and diesel. Marketing Companies take into account the requirement of the outlets based on the vehicular traffic on the road and the locations of existing outlets covering the entire distance of the road. When a notification is issued what is proposed is to open a retail outlet in and around the place notified. Therefore, even if the applicant has land little away from the place known as Amballur, but within a range of one or two kilometers, it makes no difference and in our view, the Court cannot direct the Company to insist on starting the outlet in the same place notified. In fact, in our view, busy junctions and town areas should be avoided while considering the location of petroleum outlets.

The 6th respondent has a case that the land offered by the appellant is in the bend of a road and so much so, it should not be preferred as against the land offered by the 6th respondent. All what the Company and the applicant should keep in mind is the possibility of straightening road bypassing curves and if this happens, petroleum outlets started in curves should be shifted. However, if there is no likelihood of any such eventuality, then a petroleum outlet is desirable in a bend, so that when the vehicles go at low speed, they can decide whether to fill fuel or not.

We do not find any substance in the challenge made against the allotment order. Consequently, we allow the Writ Appeals by vacating the judgment of the learned Single Judge and restore the impugned order issued by the Indian Oil Corporation in favour of the appellant in W.A.No.1616 of 2011."

In the light of the above judgments, the jurisdiction of this Court to interfere with the finding of the Land Evaluation Committee of the 1st respondent is limited. I see no reason to interfere with the selection process initiated by the 1st and 2nd respondents and the order to allot the dealership to the 3rd respondent.

Except the above two points, no other points are raised by the petitioner. I think, in the light of the above discussion, the points raised by the petitioner are unsustainable. In such circumstances, there is nothing to interfere with the selection process initiated by the 1st and 2nd respondents, based on Ext.P2 notification.

Therefore, the writ petition fails and the same is dismissed.