Kerala High Court
P.K.Omana vs Union Of India on 19 September, 2019
Equivalent citations: AIR 2020 (NOC) 594 (KER.), AIRONLINE 2019 KER 382
Author: C.K.Abdul Rehim
Bench: C.K.Abdul Rehim
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
THURSDAY, THE 19TH DAY OF SEPTEMBER 2019 / 28TH BHADRA, 1941
WA.No.1630 OF 2019
AGAINST THE JUDGMENT IN WP(C) 10646/2019 OF HIGH COURT OF KERALA
OF 29.05.2019
APPELLANTS/PETITIONERS IN THE WRIT PETITION:
1 P.K.OMANA
AGED 65 YEARS
PROPRIETRIX, PAVITHRA FULS, PUTHUVELIL HOUSE,
CHERAYEE P.O., ERNAKULAM DISTRICT, KERALA STATE-
683514.
2 PREMDAS V.M.,
AGED 61 YEARS
PROPRIETOR, UNIQUE PETROLEUM, CHUNGAM JUNCTION,
KUNNUKARA VILLAGE, S.ADUVASSERY P.O., PARAVOOR TALUK,
ERNAKULAM DISTRICT, KERALA STATE- 682 508.
3 RAGISH.A.,
AGED 37 YEARS
PROPRIETOR, M/S.SMART FUELS, H.P.C.DEALER, OONNUKAL,
KOKTHAMANGALAM, ERNAKULAM DISTRICT, KERALA STATE- 686
693
4 SOPHIA A.S.,
AGED 40 YEARS
PROPRIETRIX, NAVABHARATH FUELS, POTHANIKKADU,
KOTHAMANGALAM, ERNAKULAM DISTRICT, KERALA STATE- 686
691
BY ADVS.
SRI.SIRAJ KAROLY
SRI.C.K.PREM RAJ
SHRI.JAVED HAIDER
RESPONDENTS/RESPONDENTS IN THE WRIT PETITION:
1 UNION OF INDIA,
THROUGH SECRETARY, MINISTRY OF PETROLEUM AND NATURAL
GAS, SHASTRI BHAVAN, CENTRAL SECRETARIAT, NEW DELHI-
110001.
W.A.Nos.1630/2019
&
1687/2019 2
2 THE INDIAN OIL CORPORATION LTD.,
REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR,
3079/3, J B TITO MARG, SADIQ NAGAR, NEW DELHI-
110049.
3 THE HINDUSTAN PETROLEUM CORPORATION LTD.,
REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR,
PETROLEUM HOUSE NO.17, JAMSHEDJI TATA ROAD, CHURCH
GATE, MUMBAI- 400020.
4 THE BHARATH PETROLEUM CORPORATION LTD.,
REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR,
BHARATH BHAVAN, 4 AND 6, CURRIMBHOY ROAD, BALLARD
ESTATE, MUMBAI- 400001.
5 THE STATE LEVEL CO-ORDINATOR OF OIL COMPANIES,
THROUGH GENERAL MANAGER, KERALA, STATE OFFICE,
INDIAN OIL CORPORATION, PANAMPILLY NAGAR, KOCHI-
682036.
6 DISTRICT COLLECTOR (DISTRICT MAGISTRATE),
ERNAKULAM, CIVIL STATION, KAKKANADU, COCHIN-
682030.
7 STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM- 695001.
R2-5 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR
R2-5 BY ADV. SRI.K.JOHN MATHAI
R2-5 BY ADV. SRI.JOSON MANAVALAN
R2-5 BY ADV. SRI.KURYAN THOMAS
R2-5 BY ADV. SRI.PAULOSE C. ABRAHAM
GOVERNMENT PLEADER SRI.SYAMJI RAM
SRI.KRISHNADAS P.NAIR CENTRAL GOVERNMENT COUNSEL
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 06.08.2019,
ALONG WITH WA.1687/2019, THE COURT ON 19.09.2019 DELIVERED THE
FOLLOWING:
W.A.Nos.1630/2019
&
1687/2019 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
&
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
THURSDAY, THE 19TH DAY OF SEPTEMBER 2019 / 28TH BHADRA, 1941
WA.No.1687 OF 2019
AGAINST THE JUDGMENT IN WP(C) 5876/2019 OF HIGH COURT OF KERALA
DATED 29.05.2019
APPELLANTS/PETITIONERS IN WPC:
1 PETROLEUM TRADERS WELFARE AND LEGAL SERVICE SOCIETY
PALARIVATTOM, COCHIN 25, REPRESENTED BY ITS
CHAIRMAN A.M SAJI.
2 SAJI A.M,
CHAIRMAN, PETROLEUM TRADERS WELFARE AND LEGAL
SERVICE SOCIETY,
PALARIVATTOM, COCHIN 25
3 R. RAJESH,
GENERAL SECRETARY, PETROLEUM TRADERS WELFARE AND
LEGAL SERVICE SOCIETY, PALARIVATTOM, COCHIN 25
BY ADVS.
SRI.M.RAMESH CHANDER (SR.)
SRI.BONNY BENNY
SRI.BALU TOM
SMT.K.A.SANJEETHA
RESPONDENTS/RESPONDENTS IN WPC:
1 UNION OF INDIA
THROUGH SECRETARY, MINISTRY OF PETROLEUM AND
NATURAL GAS, A-WINK, SHASTRI BHAVAN, RAJENDRA
PRASAD ROAD, NEW DELHI 110 001
W.A.Nos.1630/2019
&
1687/2019 4
2 THE PETROLEUM AND NATURAL GAS REGULATORY BOARD,
THROUGH ITS SECRETARY, 1ST FLOOR, WORLD TRADE
CENTER, BABAR ROAD, NEW DELHI-110 001.
3 STATE OF KERALA,
REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT OF
KERALA, THIRUVANANTHAPURAM 695 001
4 THE INDIAN OIL CORPORATION ,
THROUGH ITS MANAGING DIRECTOR, G-9, ALIYAR JUNG
MARG, BANDRA EAST, MUMBAI 400 051
5 BHARAT PETROLEUM
THROUGH ITS CHAIRMAN, BHARAT BHAWAN, 4 AND 6
CURRIMBHOY ROAR, BALAD ESTATE, MUMBAI 400 001.
6 HINDUSTAN PETROLEUM CORPORATION ,
THROUGH ITS CHAIRMAN, PETORLEUM HOUSE-17, JAMSHEED
J1 TATA ROAD, MUMBAI, MAHARASHTRA 400 020
R4-6 BY ADV. SRI.P.GOPINATH (SR.)
R4-6 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR
R4-6 BY ADV. SRI.K.JOHN MATHAI
R4-6 BY ADV. SRI.JOSON MANAVALAN
R4-6 BY ADV. SRI.KURYAN THOMAS
R4-6 BY ADV. SRI.PAULOSE C. ABRAHAM
GP-SRI. SYAMJI RAM
SRI.P.VIJAYAKUMAR-CGC
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 06.08.2019,
ALONG WITH WA.1630/2019, THE COURT ON 19.09.2019 DELIVERED THE
FOLLOWING:
W.A.Nos.1630/2019
&
1687/2019 5
C.K.ABDUL REHIM
&
R.NARAYANA PISHARADI, JJ.
**************************
W.A.Nos.1630 of 2019
&
1687 of 2019
----------------------------------------------
Dated this the 19th day of August, 2019
JUDGMENT
R.Narayana Pisharadi, J These appeals arise out of the judgment of a learned Single Judge of this Court in the writ petitions, W.P.(C) No.10646 of 2019 and W.P.(C) No.5876 of 2019 respectively. The appellants are the writ petitioners.
2. During the discussion that follows, the documents shall be referred to as they are marked in W.P.(C) No.5876/2019.
3. Exts.P1 to P3 notifications, inviting applications for appointment of about 1750 petroleum retail outlet dealers in the State, were published by the Oil Marketing Companies (for short 'OMCs') Indian Oil Corporation Limited, Bharat Petroleum W.A.Nos.1630/2019 & 1687/2019 6 Corporation Limited and Hindustan Petroleum Corporation Limited. W.P.(C) No.5876/2019 was filed by the society by name "Petroleum Traders Welfare and Legal Service Society" and its Chairman and General Secretary, challenging Exts.P1 to P3 notifications.
4. The reliefs sought in W.P.(C) No.5876/2019 are the following:
"i) Issue a writ of certiorari or any other appropriate writ order or direction to quash Exhibit P1 to P3 notifications.
ii) Issue a writ of mandamus or any
other appropriate writ order or direction
directing the respondents to not to proceed further pursuant to Exhibit P1 to P3 notifications.
iii) Issue a writ of mandamus or any
other appropriate writ order or direction
directing the 3rd respondent State of Kerala to strictly adhere to the norms fixed by the Government of India as well as by the statute before its officers grant No Objection Certificate for the installation of retail W.A.Nos.1630/2019 & 1687/2019 7 dealership in petroleum products.
iv) Issue such other order /direction as this Hon'ble Court deems fit and proper under the circumstances of this case."
5. W.P.(C) No.10646/2019 was filed by the appellants in W.A.No.1630/2019, who are petroleum retail dealers and who belong to Scheduled Caste community, challenging the very same notifications issued by the OMCs. The reliefs sought in W.P.(C) No.10646/2019 are the following:
"i) Issue a writ of mandamus or any other appropriate writ, order or direction commanding the Oil Marketing Companies/Respondent petroleum companies herein to modify or withdraw new petroleum outlets based on Exhibit-P6 notification, near the petitioners' petroleum outlets already allotted and functioning under SC/ST category;
ii) Issue a direction to the 5th respondent herein to conduct a feasibility study regardig the new outlets proposed near the outlets of the SC/ST category throughout W.A.Nos.1630/2019 & 1687/2019 8 Kerala and fix criteria based on the distance or sale volume;
And
iii) Issue such other order or direction as this Hon'ble Court deems fit and proper to grant in the facts and circumstances of the case, in the interest of justice."
6. The Hindustan Petroleum Corporation Limited, the 6 th respondent in W.P.(C) No.5876/2019, had filed a detailed counter affidavit in that writ petition. (Though counter affidavits had been filed by the other two OMCs, copies of the same are not seen attached to the writ appeals. But, it is stated that counter affidavits filed by them are typical in nature as that of the counter affidavit filed by the 6th respondent).
7. The learned Single Judge considered the two writ petitions together and dismissed them through the impugned judgment. The writ petitioners have come up in appeal.
8. It is not necessary to narrate the facts stated and grounds alleged in the two writ petitions and the findings made by the learned Single Judge in detail here, as we would be W.A.Nos.1630/2019 & 1687/2019 9 adverting to them later in detail.
9. We have heard learned counsel for the parties at length in the two appeals.
10. The main ground of challenge raised by the writ petitioners against Ext.P1 to Ext.P3 notifications is that, the decision taken by the OMCs to sanction large number of petroleum retail outlets, was made without conducting any feasibility and viability study. But, it is categorically asserted in the counter affidavit filed that the notifications inviting applications for appointment of the dealers were published only after conducting detailed study for identifying suitable locations for setting up the retail outlets. The nature of the study conducted by the OMCs is narrated in the counter affidavit. Learned Single Judge accepted the averments in the counter affidavit in this regard and found that "it is also clear and evident that, in order to establish the retail outlets, substantial investments are to be made by the OMCs, and therefore, it cannot be believed that the OMCs will not carry out any feasibility W.A.Nos.1630/2019 & 1687/2019 10 study before advertising such retail outlets for sale of petroleum products."
11. We do not find any error, illegality or impropriety in the aforesaid finding made by the learned Single Judge. The appellants assail the aforesaid finding on the ground that the learned Single Judge should not have accepted the averments in the counter affidavit filed by the OMCs as true as the study reports were not produced by them before the Court. It was not necessary for the OMCs to produce copies of the study reports in respect of each and every location of retail outlet identified. There is nothing to suspect the truthfulness of the contents of the counter affidavit filed by the OMCs regarding the feasibility study conducted by them. Commercial viability is an important factor in identifying the location of a petroleum retail outlet. It is too difficult to accept that the OMCs have decided to establish new petroleum retail outlets without conducting any viability and feasibility study. It is to be noted that the challenge in the writ petitions is not against the establishment of any particular W.A.Nos.1630/2019 & 1687/2019 11 petroleum outlet. In such circumstances, the learned Single Judge has taken a reasonable view of the matter.
12. Even if the viability and feasibility study reports had been produced by the OMCs, this Court could not have gone into the correctness or otherwise of those reports. In Tamil Nadu Generation and Distribution Corporation Ltd. v. CSEPDI- Trishe Consortium: AIR 2016 SC 4879, the Supreme Court has observed as follows:
"At this juncture we are obliged to say that in a complex fiscal evaluation the Court has to apply the doctrine of restraint. Several aspects, clauses, contingencies, etc. have to be factored. These calculations are best left to experts and those who have knowledge and skills in the field. The financial computation involved, the capacity and efficiency of the bidder and the perception of feasibility of completion of the project have to be left to the wisdom of the financial experts and consultants. The courts cannot really enter into the said realm in exercise of power of judicial review".
In the case of a policy decision on economic matters, the courts should be very circumspect in conducting any enquiry or W.A.Nos.1630/2019 & 1687/2019 12 investigation and must be most reluctant to impugn the wisdom and judgment of the experts.
13. The appellants rely upon Ext.P4, the reply given on 01.12.2004 by the Minister concerned to a question raised in the Parliament regarding shortage of petroleum products, to buttress the contention that no new petroleum retail outlets are needed now. Ext.P4 reveals that the Minister had stated that there was no report of shortage of petroleum products due to lack of retail outlets in any part of the country. This statement was made by the Minister in the year 2014. There can be no dispute with regard to the fact that, since the year 2014, there has been considerable increase in the number of vehicles and sale of petroleum products. On the basis of the situation which existed in the year 2014, it cannot be found that there is no need now for establishing new petroleum retail outlets.
14. Moreover, Ext.P4 itself reveals that the following answer was given by the Minister to the question regarding the steps taken by the Government to overcome the situation of W.A.Nos.1630/2019 & 1687/2019 13 shortage of petroleum products:
"OMCs set up retail outlets at identified locations based on field survey and feasibility studies. Locations found to be having sufficient potential and which are economically viable are rostered in the Marketing Plans for setting up retail outlets. OMCs regularly advertise locations for setting up of retail outlets as per their Marketing Plan from time to time."
The aforesaid answer given by the Minister completely belies the apprehensions of the appellants regarding the setting up of new petroleum retail outlets.
15. It is stated in W.P.(C) No.5876/2019 that increase in the number of petroleum retail outlets would result in scarcity of drinking water in the State. It is further stated that huge number of petroleum retail outlets would cause adverse impact on the environment. It is also stated that large number of such outlets create health hazards. The appellants have not produced any materials to substantiate their apprehensions expressed W.A.Nos.1630/2019 & 1687/2019 14 above. Therefore, none of these facts stated in W.P.(C) No.5876/2019 required consideration by the learned Single Judge. Averments made or apprehensions expressed on the basis of mere surmises, conjunctures and imaginations cannot be acted upon by the Court.
16. It is stated in W.P.(C) No.5876/2019 that since petroleum products are highly inflammable, there is high risk and danger in their transportation, storing etc. At this juncture, it is to be noted that the appellants/writ petitioners are none other than petroleum retail dealers. It is an irony that, the appellants who are dealers of petroleum products, contend that their business activities cause health hazards and environmental pollution. If the appellants are really interested in abating or reducing the health hazards, pollution, accidents etc. and creating an ideal environmental and ecological atmosphere, the appellants themselves have to stop the functioning of the retail outlets now being conducted by them and set an example.
17. It is stated in W.P.(C) No.5876/2019 that the policy of W.A.Nos.1630/2019 & 1687/2019 15 the Government is to produce electric vehicles. A news report with regard to a statement made by the Minister concerned (Ext.P5) is relied upon to substantiate this plea. Even as per the statement made by the Minister, electric cars would become a reality in the country only in the year 2030. The plea that, the OMCs shall not set up any new petroleum retail outlets in the country till such time, is only far-fetched and it does not require any consideration by the court.
18. Ext.P6 is the copy of the guidelines issued by the Government of India regarding access to fuel stations to be set up along the side of National Highways. These guidelines have nothing to do with the identification of location for establishing a petroleum retail outlet. These guidelines come into play only when the applications received for appointment of dealers are considered and processed. Even otherwise, learned senior counsel for the appellants in W.A.No.1687/2019 has not pointed out which provision in these guidelines is being violated by the OMCs.
W.A.Nos.1630/2019& 1687/2019 16
19. The real motive behind filing W.P.(C) No.5876/2019 is disclosed in paragraphs 28 and 29 of that writ petition. It is stated that establishment of new fuel stations would have adverse impact on the existing retail outlet dealers. It is stated that authorised retail dealers appointed by OMCs are entitled to get protection against indiscreet opening of petroleum outlets in nearby areas as it would cause loss of business to them.
20. Existing petroleum retail dealers have no right to have monopoly in the business. They have no right to contend that no other person shall be granted dealership as it would affect their business. There can be no monopoly in business otherwise than permitted under law.
21. The right to carry on business being a fundamental right under Article 19(1)(g) of the Constitution of India, its exercise is subject only to the restrictions imposed by law in the interests of the general public. A person cannot claim, independently of the restrictions provided under Article 19(1)(g) of the Constitution, that another person shall not carry on business or trade so as to W.A.Nos.1630/2019 & 1687/2019 17 affect his trade or business adversely (See Nagar Rice and Flour Mills v. Teekappa Gowda: AIR 1971 SC 246).
22. In Mary Ulahannan v. Union of India : 2011 (2) KHC 792: 2011 (3) KLT 570, wherein starting of new petroleum outlets in the State was challenged on various grounds, a learned Single Judge of this Court had held that even if there is any contravention of any of the terms of the agreement entered into by the dealers with the oil company, the remedy of them is only to have it agitated before proper civil court, for damages, if any or for such other appropriate reliefs, which is a matter to be considered by such court, on the basis of the specific pleadings and evidence to be let in and not for this Court to be examined by invoking the discretionary jurisdiction under Article 226 of the Constitution of India. The learned Single Judge dismissed the writ petitions but directed that the Committee set up under the chairmanship of the Joint Secretary (Marketing), Ministry of Petroleum and Natural Gases would look into the demands of the traders for rationalising the growth of W.A.Nos.1630/2019 & 1687/2019 18 retail outlets in the country and that the Committee would prescribe a set of guidelines, on the basis of which, the OMCs will proceed while planning for new retail outlets.
23. The judgment in Mary Ulahannan (supra) was challenged in appeal before the Division Bench. In the decision reported as Basheer v. State of Kerala : 2011 (4) KHC 285, the Division Bench of this Court reversed Mary Ulahannan (supra) and directed the Government to constitute a high level joint committee in the State to hear the objections of existing petroleum retail dealers. It was held by the Division Bench that the OMCs should keep in mind the viability of new retail outlets on the basis of the minimum quantity of business stipulated. It was held that existing dealers of OMCs particularly the outlets operated by members of Scheduled Castes/Scheduled Tribes have a legal right to oppose indiscrete and indiscriminate opening of retail outlets by OMCs near existing outlets, if the same leads to loss and eventual closure of their business. It was further held that interest of members belonging to Scheduled W.A.Nos.1630/2019 & 1687/2019 19 Castes/Scheduled Tribes and some other weaker sections of the society should be protected as they have a legal right to oppose indiscriminate and indiscrete opening of the new petroleum outlets near their existing outlets. The Division Bench also directed to formulate guidelines imposing restrictions on establishment of new petroleum outlets.
24. The judgment of the Division Bench of this Court in Basheer (supra) was challenged before the Supreme Court by the petroleum companies. The appeals filed by the OMCs were allowed by the Supreme Court stating as follows:
"We find no justification for the Division Bench to upturn the judgment and order of the Single Judge dismissing the writ petition. Accordingly, the impugned judgment is set aside. However, it is observed that the guidelines framed by the High Court may be kept in view by the Central Government if there is need to frame guidelines with regard to establishment of retail outlets of the oil marketing companies".
25. After adverting to the judgment of the Supreme Court above, the learned Single Judge has stated in the impugned W.A.Nos.1630/2019 & 1687/2019 20 judgment as follows:
"However, on a reading of the judgment of the Apex Court, it is clear that the judgment rendered by the learned Single Judge in 'Mary Ulahannan v. Union of India' [2011 (3) KLT 570] produced as Ext.R6(d) was absolutely and wholly upheld by the Apex Court by overruling the judgment of the Division Bench. Therefore, the contentions advanced by the petitioners on the guidelines, and Circular issued by the State Government in the matter of issuance of No Objection Certificates, cannot be sustained, especially due to the fact that the Central Government has not issued any norms/guidelines with respect to the appointment of retail dealers throughout the country".
We fully agree with the aforesaid view taken by the learned Single Judge in the impugned judgment.
26. The effect of the abovementioned judgment of the Supreme Court was considered by one of us (Justice C.K.Abdul Rehim) in Hassan v. Union of India (2013 (2) KHC 775). In that decision several writ petitions were considered together. In some writ petitions, challenge was raised against sanctioning of W.A.Nos.1630/2019 & 1687/2019 21 new petroleum outlets by OMCs in a manner causing prejudice to the quantum of sale in the existing outlets situated nearby the proposed sites. In some of the cases, notifications calling for allotment and consequent steps taken by the OMCs were under challenge. In most of the writ petitions, it was contended that the OMCs had published notifications inviting applications for allotment of new outlets without conducting any study about the feasibility or necessity for new outlets in the area in question. It was also contended that the decision to have new outlets in such areas was taken without compliance of the guidelines and circulars issued by Government of India. In some other cases, it was contended that the existing outlets were alloted under reserved categories for Scheduled Castes and Scheduled Tribes and that the OMCs had an obligation to ensure minimum targeted sale in such cases and no new outlets could be allotted in detrimental to the business interests of such persons. However, this Court held as follows:
"In view of the order of the Hon'ble Supreme Court as above, the issue involved now stands W.A.Nos.1630/2019 & 1687/2019 22 covered and these writ petitions cannot be entertained. But learned counsel for the petitioners in some of the cases have attempted to point out a distinction that in many of the cases the steps for allotment of new outlets were initiated without conducting any study regarding feasibility as required under circulars issued by the Union Government, dated 6th April, 2011 from the Ministry of Petroleum and Natural Gases (No. P.19011/5/2010-10C). It is pointed out that in paragraph 18 of the decision in Mary Ulahannan's case, this Court had clarified that the decision on the question of locus standi will not bar the petitioners in filing writ petition, if the impugned order is against law or if there is any violation of the Act/Rules as declared by the Apex Court. But standing counsel appearing for the OMCs had pointed out that even the circular upon which reliance has been placed is not in force at present, because by virtue of a subsequent decision taken by the Government, the application of the said circular has already been put on hold. I am of the opinion that, questions whether there is any circular prescribing the norms or whether such norms have been complied or not, are not matters left open for challenge to the petitioners in view of W.A.Nos.1630/2019 & 1687/2019 23 the specific findings contained in the decision in Mary Ulahannan's case in which the locus standi has been found against, which has already been confirmed by the Hon'ble Supreme Court. It is pertinent to note that the observations contained in the judgment in Mary Ulahannan's case, is to the effect that there is no Rules/ orders/ norms issued by the Union Government to the extent of formulating any policy or guidelines with respect to starting of new retail outlets in any locality near to the existing outlets, as contained in the circular issued by the State Government, which has already been set aside. However, on the basis of the legal precedent settled directly on the question of locus standi, this Court cannot have a further scrutiny regarding the alleged violations of any norms. Position remaining as on today, the decision of this Court in Mary Ulahannan's case, which stands confirmed through order of the Hon'ble Supreme Court, is binding on me and hence I am of the view that these writ petitions cannot be entertained on the very question of locus standi itself. Further, as concluded, the petitioners are not entitled to challenge the grant of NOC on the basis that the new location proposed are prejudicial to their business interests".W.A.Nos.1630/2019
& 1687/2019 24 The present writ appeals are liable to be dismissed soley on the basis of the abovementioned findings in Hassan (supra). It is also pertinent here to note that the decision in Hassan (supra) stands approved by a Division Bench of this Court in Sheena Prakash v. Union of India (2013 KHC 3365).
27. Regarding the policy to be adopted by the Government in the matter, another Division Bench of this Court in Hindustan Petroleum Corporation v. All Kerala Federation of Petroleum Traders (2018 KHC 355), after considering the decisions in Mary Ulahannan (supra), Basheer (supra) and also the judgment of the Apex Court upholding Mary Ulahannan, has held as follows:
"As stated earlier and as argued by the learned Senior Counsel appearing for the Union of India, the Government have in paragraph No.6 of Ext.P8 letter conveyed the decision of the Government that it has decided to leave the fixation of volume norms for opening retail outlets to the best judgment of the oil marketing companies. This decision of the Government is in our opinion consistent with and in tune with Ext.P5 order W.A.Nos.1630/2019 & 1687/2019 25 passed by the Apex Court. Ext.P5 order of the Apex Court governs the rights of parties. No further directions by a learned single Judge of this court or by a Division Bench can in our opinion confer better and further rights on the writ petitioners. Their rights stand concluded by Ext.P5 judgment. They had in our opinion, no right in them to move the Government to frame a set of guidelines. The petitioners cannot by submitting Ext.P6 representation resurrect an issue which had been finally decided by the Apex Court. They had in our opinion no cause of action to institute W.P.(C) No.13023 of 2013. The judgment of the Apex Court is clear and categoric to the effect that the Government are obliged to take into account the guidelines rendered by the Division Bench of this court in Ext.P4 judgment only if it feels that there is need and necessity to frame a set of guidelines. The Government have in Ext.P8 conveyed their decision, that it has decided to leave it to the oil marketing companies".
28. All the main contentions raised by the appellants in W.A.No. 1687 of 2019 stand covered and considered and decided by the decisions in Mary Ulahannan (supra), which stands confirmed by the Apex Court, and Hassan (supra) and Sheena Prakash (supra). W.A.Nos.1630/2019 & 1687/2019 26 Other contentions based on the reply given by the Minister to a question raised in the Parliament and the policy of the Government to encourage electric vehicles etc have been dealt with by us.
29. The appellants in W.A.No.1630/2019, who are the writ petitioners in W.P.(C) No.10646/2019, are members belonging to Scheduled Caste. Their grievance in the writ petition is with regard to sanctioning of new petroleum outlets in the vicinity of the fuel stations now being conducted by them. The learned Single Judge has considered their grievance in the impugned judgment and held as follows:
"However, the ground raised is that, they are members of Scheduled Castes and if new petroleum/diesel outlets are established near to their outlets, it will seriously prejudice their rights and interests protected under Article 15 and Article 46 of the Constitution of India. However, in my considered view, they are given special treatment by allotting dealerships by inviting applications from members of such communities, in order to ensure their livelihood. Merely because their interests are protected under Article 15 and Article 46 of the Constitution, that will not in any manner W.A.Nos.1630/2019 & 1687/2019 27 enable them to secure protection by inhibiting the OMCs establishing retail outlets to suit the convenience of the larger public to meet their requirements. It cannot also be said that companies are not at liberty to put forth healthy competition, and therefore, the contentions so advanced by the petitioners in the said writ petition also cannot be sustained under law".
30. We agree with the aforesaid view taken by the learned Single Judge. At this juncture, we may notice that the contentions advanced by the appellants in W.A.No.1630/2019, based on their special status as members of the Scheduled Castes, were considered and negatived by this Court in Mary Ulahannan (supra), which stands confirmed by the Supreme court and also in Hassan (supra). In Mary Ulahannan (supra), this Court has held as follows:
"With regard to the claim of some
petitioners, who are stated as belonging to
Scheduled Castes (stated as having better rights by virtue of the Constitutional mandate, providing the rules of reservation), it is rather admitted that such petitioners have been allotted the existing retail outlets in conformity with the relaxed W.A.Nos.1630/2019 & 1687/2019 28 requirements in the matter of selection, when such allotments were made. As borne by Ext. P2 advertisement in WP (C) 37417 of 2010, there is no much financial burden on such allotees (but for the least minimum extent). Under Clause 8(a) of the advertisement, the land is provided by the Oil Company, all the infrastructure including the building are set up by the Company itself and even the working capital is provided (which alone needs to be repaid by way of 100 installments commencing from 13th month of operation of the unit). This being the position, the contention raised by the petitioners belonging to Scheduled Caste community, stating that, much loss and hardships are being caused to them, because of the proposal to start new retail outlets in the localities concerned, does not hold good.
(emphasis supplied).
31. As noticed in Hindustan Petroleum Corporation (supra) the Government has left the policy regarding opening of retail outlets to the OMCs. Judicial review, as is well known, lies against the decision making process and not on the merits of the decision itself. Validity of complex executive decisions in W.A.Nos.1630/2019 & 1687/2019 29 commercial or economic matters cannot be tested on any rigid principles. Only palpably arbitrary decisions can be interfered with in judicial review of decisions in such matters. Unless the decision suffers from the vice of arbitrariness, irrationality, perversity or violates any provisions of the law, the court cannot sit as an appellate authority and enter the arena of disputed facts and figures and interfere with administrative and policy decisions.
32. One can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground is "illegality", the second "irrationality", and the third "procedural impropriety". The court will be slow to interfere in such matters relating to administrative functions unless decision is tainted by any vulnerability like illegality, irrationality and procedural impropriety. Whether action falls within any of the categories has to be established. Mere assertion in that regard would not be sufficient (See State v. Sanjeev: AIR 2005 SC 2080).
W.A.Nos.1630/2019& 1687/2019 30
33. We find that the learned Single Judge has rightly declined to interfere with the decision taken by the OMCs to establish new petroleum retail outlets. We find no error, illegality or impropriety in the impugned judgment. The appeals are liable to be dismissed.
Consequently, the writ appeals are hereby dismissed.
(sd/-) C.K.ABDUL REHIM, JUDGE (sd/-) R.NARAYANA PISHARADI, JUDGE jsr/18/09/2019 True Copy PS to Judge