S. Maheswari vs The Hindustan Petroleum Corporation Ltd. and A. Muthuramalingam

B. Rajendran, J.—The prayer in the writ petition is to quash the notification published by the Respondents Corporation in "The Hindu", dated 20.06.2010 insofar as Sl. No. 211 in Mallipudur Village on the State Highways 42 alone and consequently to direct the Respondents to re-issue the notification for Malli village for appointment of dealership of retail outlet in Malli village and to allow the Petitioner to participate in the said selection process in accordance with the rules.

The Petitioner would contend that she is eligible candidate for participating in the retail outlet of petroleum and petroleum products. According to her, the first Respondent called for applications for appointment of dealer for retail outlet for petroleum products of the Respondent Corporation in various places. In the said notification, Sl. No. 211 is for the dealer at Mallipudur village on the State Highways-42 which is allotted for the open category. According to her, Mallipuduris a new village and the village is called Malli village and both the villages are one and the same village as per the revenue records. She would also contend that one of the conditions in the notification in Sl. No. 211 is that the proposed site must be abutting the State Highways 42. She would further contend that the State Highways 42 is crossing only Malli village and not Mallipudur village. Therefore, she would contend that in the notification it should have been only stated that it is to be situated in the State Highways 42only the Malli village and not Mallipudur and according to her, Malli is far away from the State Highways 42. Therefore, the entire notification was issued on a misconstrued fact of the geographical area. The State Highways 42, is only crossing Malli village and if a proper notification is issued, the Petitioner would also be eligible as she is residing at Malli village. Since in the notification Mallipudur village was wrongly mentioned instead of Malli village and therefore, she could not file an application for the dealership. According to her, had the Malli village been mentioned in the notification, she would have applied and hence, she challenges the notification itself for the grant of dealership.

The second Respondent filed a counter affidavit stating that the writ petition will not lie since as per the notification for the distributorship for the item in Sl. No. 211one of the requirements is that the land should be situated abutting the State Highways 42. They would specifically state that the Malli village is not situated in State Highways 42. In fact, the Tahsildar had issued communication, dated02.09.2010 as Mallipudur village lies in State Highways 42 and notice was issued after due verification. It is further submitted by the second Respondent that the submission of the Petitioner that if the notification was published as contended by the Petitioner, she would have applied, is not sustainable in law since she has not even applied, she has no right to file this writ petition. It is further stated that a rival dealer one Tamilarasi filed a writ petition in W.P.(MD) No. 11966 of 2010 challenging the notification on the ground that her outlet is close to the proposed retail outlet and the same will affect her business. This Court by order dated 09.11.2010 dismissed the writ petition. According to the second Respondent, interview for the location at S. No. 211 on SH 42 was completed and the first empanelled candidate namely, A. Muthuramalingam was also issued a letter of intent on24.11.2010 and he has also completed the formalities of signing the documents with the oil company and therefore, the interim order passed by this Court would cause great hardship and loss to them.

The successful bidder filed an application to implead himself and subsequently, he is impleaded as third Respondent in the writ petition. According to him, he was also a resident of Malli village and his land situated in SH.42 and the Petitioner herein has even not filed any application, she has no locus stand to file this writ petition and she is the person set up by the said Tamilarasi who is the rival dealer running petroleum outlet by another Corporation which has already been dismissed and the said Tamilarasi is none other than the Petitioner''s brother''s wife. The Malli village is a hamlet situated within the revenue jurisdiction of Malli village group and they have a road under the control of District Administration leading to Mallipudhur village is starting from the said SH-42 at a point called Mallipudur Road. The notification in Sl. No. 211 issued by the Hindustan Petroleum Corporation Limited also clearly mentioned Mallipudhur on SH-42 (SH-42 kPJ ky;ypg [Jhh;). Therefore, this is nothing but a business rivalry, the present writ petition has been filed by the Petitioner on behalf of the said Tamilarasi who has already lost her right to prolong the issue as long as possible. According to him, he has obtained no objection certificate from various authorities and submitted the same to the Respondent Corporation. Therefore, the writ petition is not maintainable and the same is liable to be dismissed.

Heard the submissions of the learned Counsel for the respective parties and perused the materials available on record.

The only point which has been raised by the writ Petitioner is that since she belongs to Malli village, she is entitled to participate in the selection process for the petroleum products. She has challenged the notification only on the ground that in the notification specifically mentioned in S. No. 211 as State Highways 42 on Mallipudur village whereas the State Highways 42 does not pass through the Mallipudur village and it is only Malli village. Therefore, the notice is wrong had the notification specifically mentioned the Malli village, she would have participated. Therefore, the notification itself is wrong and consequently, the allotment itself is bad. In this connection, it is pertinent to refer the paragraph 5 of the affidavit filed in support of the writ petition wherein she herself categorically admitted that "the said Mallipudur is the new village and the old village is called Malli village and both Malli village and Mallipudur village are belonging to the same village as per the revenue records". Therefore, the admission of the Petitioner is very clear that Malli and Mallipudur villages are only belonging to the same hamlet.

Pending this writ petition, this Court sought for report from the Revenue Divisional Officer to find out whether S.H.42 is crossing Mallipudur Village or Malli village. Pursuant to the direction of this Court, the Revenue Divisional Officer in his proceedings in Roc.A3/1027/11, dated01.03.2011 addressed to the Additional Government Pleader has categorically stated that as per revenue records, Malli is one of the revenue village in Srivilliputhur Taluk. Mallipuduris not a revenue village. Mallipudur is one of the hamlet of Malli Revenue village. Malli Panchayat and Mallipudur Panchayat lies in Malli revenue village. SH.42 is crossing over Malli and Mallipudur villages.

The grievance of the Petitioner is that had Malli village is mentioned in the notification, she would have participated. But it is specifically mentioned SH.42. As per the report, S.H.42 is crossing both the villages as per the notification the property is to be situated in S.H.42. The third Respondent who is the successful bidder, he has also produced a lease deed copy in his favor in respect of the land to be allotted for the retail outlet. In the document, the property is situated in Malli village in S. No. 27/1, the boundaries of the property, it is clearly stated Malli and Mallipudur villages in S.H.42 main road. Therefore, the contention raised by the Petitioner does not stand to scrutiny at all. The fourth Respondent land is situated abutting S.H.42by which he is eligible to participate. Therefore, the grievance of the Petitioner as Mallipudur village alone has-been mentioned, she could not participate does not stand to scrutiny at all. It is now brought to the notice of this Court by the Corporation as well as the third Respondent that W.P.(MD) No. 11996/2010 was filed by one Tamilarasi who is running another petrol bunk which was granted by the another corporation petrol outlet on the ground that if the present bunk is established her business would be affected. The said writ petition was dismissed by this Court and the Petitioner who is none other than the Petitioner''s brother wife and only at her instigation, the present writ petition has been filed.

Further, it is very clearly established that the hamlet situated in the revenue jurisdiction of Malli village group and in the notification itself is clearly stated that Mallipudur on S.H.42. Therefore, the Petitioner now cannot apply the word Malli and Mallipudur and seek for cancellation especially when the third Respondent has been found eligible in all perspectives and an order has been granted in favor of him. In this connection, there is no merits in the writ petition at all as she has not even applied/participated, she cannot challenge the same.

Insofar as it relates to the challenge to the allotment of petroleum products, there is also an appeal provision as per the Division Bench decision of this Court and I have followed the said decision in E. Joshua Livingston v. The Senior Divisional Retail Sales Manager, Indian Oil Corporation, Trichy Divisional Office and Ors. made in W.P. No. 27344 of 2009, dated 02.03.2011.

In the decision of this Court reported in K. Indira Vs. Union of India (UOI), Hindustan Petroleum Corporation Limited, Dealer Selection Board and M. Andal, this Court held that judicial review is permitted only on the established grounds of malafide, arbitrariness or unreasonableness. It was also held in that judgment that the Board, which is vested with the functions of selection, is an independent entity consisting of retired Judges and retired Civil Servants possessing necessary expertise and experience to perform them and therefore, there is minimal scope for alleging malafide against such a body. In this case, admittedly, the Petitioner has not alleged malafide in the awarding of marks by the corporation in favor of the third Respondent herein and therefore, the decision of the corporation to award marks in favor of the third Respondent need not be interfered with.

In the decision of the Honorable Supreme Court in Civil Appeal No. 6798 of 2002 (arising out of SLP (C) No. 4705 of 2003) dated 28.08.2003 between (K. Vinod Kumar v. S. Palanisamy and Ors.) it was held in para-14 as follows:

The law is settled that over proceedings and decisions taken in administrative matters, the scope of judicial review is confined to the decision-making process and does not extend to the merits of the decision taken. No infirmity is pointed out in the proceedings of the selection Board which may have the effect of vitiating the selection process. The capability of the Appellant herein to otherwise perform as an LPG distributor is not in dispute. The High Court was not, therefore, justified in interfering with the decision of the Selection Board and the decision of the BPCL to issue letter of allotment to the Appellant herein.

In the four Judges bench of the Honorable Supreme Court reported in (Haryana Financial Corporation and Anr. v. Jagdamba Oil Mill and Anr. (2002) 1 CTC 503, in para-14, it was held as follows:

The fairness required of the Corporations cannot be carried to the extent of enabling them from recovering what is due to them. The matter can be looked at from another angle. The corporation is an independent autonomous statutory body having its own constitution and rules to abide by, and functions and obligations to discharge. As such in the discharge of its functions, it is free to act according to its own light. The view it forms and decisions it takes are on the basis of the information in its possession and the advice it receives and according to its own perspective and calculations. Unless its action is mala fide, even a wrong decision by it is not open to challenge. It is not for the Courts or a third-party to substitute its decision, however, more prudent, commercial or businesslike it may, for the decision of the Corporation. As was observed by this Court in U.P. Financial Corporation and Others Vs. Naini Oxygen and Acetylene Gas Ltd. and Another, , commercial matters the Courts should not risk their judgments for the judgments of the bodies to whom that task is assigned....

Useful reference could be made to a decision of this Court made in W.P. No. 11021 of 2010 dated 20.07.2010 in respect of the award of distributorship by the Indian Oil Corporation Limited wherein this Court held that in writ jurisdiction under Article 226 of the Constitution of India, this Court cannot sit in appeal over the selection of a candidate made by the corporation for grant of award of retail outlet. If the selection process is vitiated by arbitrary or irrational exercise of power or by malafide or based on no material error or by ignoring relevant factors including eligibility, the writ Court, on proof of such relevant facts, may grant the appropriate relief. However, it is not for the writ Court to dwell deep into the records of the corporation and examine the validity of rival claims upon appreciation afresh of the materials on such record and on the basis of such re appraisal to decide whether the selection was properly made and to give effect to such decision by the issue of a writ. In para-18, it was held as follows:

In the case on hand, the Distributor selection committee/authority, which is vested with the function of selection of dealers, is an independent entity. The said committee, after considering the materials on record and the personal assessment on merits, business ability, capacity etc., of the applicants, has selected third Respondent for grant of distributorship and issued the Letter of Indent dated 05.04.2010, following the disqualification of the Petitioner. The process of appreciating and weighing various factors, materials and rival merits is the function of the Distributor Selection Committee, which is having necessary expertise to perform its duties properly. Therefore, in my view, there cannot be any re-appreciation or re-appraisal of relevant material factors, relative qualifications and evaluation of the comparative merits of the candidates in a writ proceedings under Article 226 of The Constitution of India. As such, the proceedings of the first Respondent, impugned herein, cannot be faulted with.

The Petitioner has not even applied, if at all, she is aggrieved, she could have availed this opportunity. But in this case, she has not even applied without even application, the writ petition itself is not maintainable. Hence, the writ petition is dismissed. No costs. Consequently, connected miscellaneous petitions are closed.