Kerala High Court
Haroon.A.K vs Indian Oil Corporation Ltd on 26 April, 2021
Equivalent citations: AIRONLINE 2021 KER 460
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
MONDAY, THE 26TH DAY OF APRIL 2021 / 6TH VAISAKHA, 1943
WP(C).No.3415 OF 2019(B)
PETITIONER:
HAROON.A.K,
AGED 31 YEARS,
S/O ABDUL AZEEZ,
PANAYULLATHIL (H),
P.O.PERODE, (VIA),
NADAPURAM, KOZHIKODE.
BY ADV. SRI.C.P.MOHAMMED NIAS
RESPONDENTS:
1 INDIAN OIL CORPORATION LTD.,
REGD. OFFICE: INDIAN OIL BHAWAN,
G-9, ALL YAVAR JUNG MARG,
BANDRA (EAST),
MUMBAI 400051,
REPRESENTED BY ITS MANAGING DIRECTOR.
2 HEAD OF DIVISIONAL OFFICE,
INDIAN OIL CORPORATION LTD,
KOZHIKODE DIVISIONAL OFFICE,
11 FLOOR, PMK TOWERS,
NEAR CIVIL STATION,
KOZHIKODE 673 020.
R1-2 BY ADV. SRI.K.JOHN MATHAI
R1-2 BY ADV. SRI.JOSON MANAVALAN
R1-2 BY ADV. SRI.KURYAN THOMAS
R1-2 BY ADV. SRI.PAULOSE C. ABRAHAM
R1-2 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 26-04-2021, ALONG WITH WP(C).22397/2019(Y), THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) No.3415 & 22397 of 2019
:2 :
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
MONDAY, THE 26TH DAY OF APRIL 2021 / 6TH VAISAKHA, 1943
WP(C).No.22397 OF 2019(Y)
PETITIONER:
BIJI MATHEW,
AGED 49 YEARS,
W/O. MATHEW V,
PERIKKAMATTATHIL HOUSE, NECHOOR P.O,
ERNAKULAM DISTRICT, PIN 686 664
BY ADVS.
SRI.M.M.MONAYE
SHRI.M.PAUL VARGHESE
SMT.BINCY JOSE
RESPONDENTS:
1 INDIAN OIL CORPORATION LTD.,
REGD. OFFICE, INDIAN OIL BHAWAN, G9,
ALL YAVAR JUNG MARG, BANDRA (EAST),
MUMBAI 400 051, REPRESENTED BY ITS CHAIRMAN
2 GENERAL MANAGER,
INDIAN OIL CORPORATION LTD.,
PANAMPILLY AVENUE,
PANAMPILLY NAGAR P.O, KOCHI 682 036
3 DIVISIONAL OFFICER,
KOCHI DIVISIONAL OFFICE,
INDIAN OIL CORPORATION LTD,
PANAMPILLY AVENUE,
PANAMPILLY NAGAR P.O, KOCHI 682 036
R1-3 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR
R1-3 BY ADV. SRI.K.JOHN MATHAI
R1-3 BY ADV. SRI.JOSON MANAVALAN
R1-3 BY ADV. SRI.KURYAN THOMAS
R1-3 BY ADV. SRI.PAULOSE C. ABRAHAM
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 26-04-2021, ALONG WITH WP(C).3415/2019(B), THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) No.3415 & 22397 of 2019
:3 :
JUDGMENT
~~~~~~~~~ Dated this the 26th day of April, 2021 Both these writ petitions have been filed challenging the cancellation of selection process for allotment of Petroleum Retail Outlets by Indian Oil Corporation Ltd.
2. The petitioner in WP(C) No.3415/2019 states that the 1st respondent-Indian Oil Corporation Ltd. published Ext.P1 advertisement on 25.11.2018 inviting applications for regular/rural retail outlet dealerships at various locations in the State of Kerala and Mahe District of Union Territory of Pondicherry. The petitioner is lessee of 5.99 Ares of property in Survey No.140, Sub Division No.39 of Olavanna Village in Kozhikode District. In response to Ext.P1 Advertisement, the petitioner submitted Ext.P3 application. By Ext.P4 communication, the petitioner was informed that he was qualified for bid opening process for selection of Retail Outlet dealership and was required to be present personally on WP(C) No.3415 & 22397 of 2019 :4 : 01.02.2019 at the bid opening venue.
3. Four candidates were qualified for the bid opening process, for location No.611. To the prejudice and predicament of the petitioner, he was telephonically informed that the 1st respondent is cancelling the draw in respect of location No.611. The same was communicated by Ext.P7 e-mail also on 01.03.2019. The petitioner seeks to quash Ext.P7 and the cancellation of the selection process.
4. The petitioner in WP(C) No.22397/2019 also submitted Ext.P3 application in response to Ext.P1 advertisement dated 25.11.2018 for location No.209, 'Chelad to Kothamangalam' in Ernakulam District. The petitioner, as per Ext.P4 communication, was informed that he being the only applicant for the said location, he is declared as selected. The petitioner made the initial security deposit of `40,000/- and produced all the requisite documents. However, the petitioner was served with Ext.P8 communication stating that the subject location stands cancelled. Though the petitioner submitted further representations, there was no positive WP(C) No.3415 & 22397 of 2019 :5 : response from the respondents. The petitioner therefore seeks to set aside Ext.P8 and to direct the respondents to process his application.
5. The counsel for the petitioner in WP(C) No.3415/2019 argued that the selection process was cancelled arbitrarily, without notice and for no fault of the petitioner. The cancellation communicated to the petitioner gives no reason, and hence it would amount to violation of Article 14 of the Constitution of India. It appears that cancellation is as a consequence of some complaints received by the 1st respondent after the last date prescribed for submission of applications and hence the respondents committed grave illegality, by cancelling the selection process.
6. As regards the de-duplication exercise conducted by the respondents, the counsel for the petitioner pointed out that no materials are produced by the respondents to show that the alleged mistaken categorisation of the location as "Regular Retail Outlet", instead of "Rural Retail Outlet", happened despite the conduct of the de-duplication exercise. WP(C) No.3415 & 22397 of 2019 :6 : Learned counsel relied on the judgment of the Apex Court in Sunita Gupta v. Union of India and others [(2014) 15 SCC 601] to contend that cancellation of the selection process without hearing the petitioner can not stand the scrutiny of law.
7. The learned counsel for the petitioner in WP(C) No.22397/2019 pointed out that the location of the outlet for which the petitioner was selected in the bid evaluation process, is far away from Kothamangalam Town. Ext.P7 certificate issued by the Tahsildar would prove that the location is three kilometres away from Kothamangalam Town. Ext.P10 certificate issued by the Secretary, Kothamangalam Municipality would show that the location is far outside the Municipal limits. Therefore, it is evident that there is no question of erroneous categorisation of the Retail Outlet.
8. The counsel for the petitioner further argued that the cancellation is based on a complaint filed by a rival retail outlet dealer whose outlet is within municipal limits and 500 metres away from the location. The de-duplication exercise WP(C) No.3415 & 22397 of 2019 :7 : carried out by the respondents is therefore unwarranted.
9. The learned counsel for the petitioner relied on the judgments of the Apex Court in Sunita Gupta v. Union of India and others (supra) and in Indian Oil Corporation Ltd. v. Meena Kumari and others [2007 KHC 4333 (SC)] and the judgments in Ramisetty Srinivasa Rao v. Union of India and others [2017 KHC 4571(Hyd)] and M.S. Desai and Co. v. Hindustan Petroleum Corporation Limited [1987 KHC 1956 (Guj)] to urge that cancellation without hearing is violative of the principles of natural justice.
10. The learned Standing Counsel appearing for the 1 st respondent stated that the Oil Marketing Companies had issued notice for appointment of Regular/Rural Retail Outlet dealerships for the State of Kerala & Mahe District on 25.11.2018. The 1st respondent had issued notice for 937 locations within the State of Kerala and Mahe District. The location from 'Chelad to Kothamangalam' in Ernakulam District was advertised as a 'Rural Retail Outlet', at Serial No.209.
WP(C) No.3415 & 22397 of 2019 :8 :
11. All feasible locations were identified by each Oil Marketing Company and the consolidated list was segregated into 'Rural' and 'Regular' type of Retail Outlets and rostered in line with directions of the Ministry of Petroleum and Natural Gas considering reservation criteria. 'Regular ROs' are situated at Locations on Highways (National Highways/State Highways etc.) and Urban/Semi urban areas (within Municipal limits of a town). It is submitted that 'Rural ROs' are situated at Locations in rural areas but not on Highways (NH/SH etc.) and outside Municipal limits of a town. It is submitted that Rural ROs are not to be developed on National/State/Coastal Highways, Express ways, A, B & C Class markets and areas covered under Municipal limits of a town.
12. After rostering of regular and rural type of outlets, a de-duplication exercise is carried out among the three Oil Marketing Companies for identifying common locations falling on State Highways and Rural type of Retail outlets and ensuring distribution of such common identified locations among the Oil Companies so that no common locations were WP(C) No.3415 & 22397 of 2019 :9 : appearing in State Highway and rural type of Outlets. After finalization of roster, the type of sites will be decided by the Oil Companies i.e., CC, DC & CFS:
(a) 'CC'; denoting Corporation owned sites where the land offered by the applicant would be taken on lease/purchased and fully developed as Corporation owned site.
(b) 'DC'; denoting Dealer Controlled where the land offered by the applicant along with the super structure will be developed by the dealer. Pump, tank, automation, signages, etc. will be provided by the Corporation.
(c) 'CFS'; denoting to Corpus Fund Scheme where the land offered by the applicant belonging to SC/ST category would be taken on lease/purchased and fully developed by the Corporation.
13. Based on the above steps enumerated, list of locations were advertised under Regular and Rural type of Outlets by all the Oil Marketing Companies. Interested WP(C) No.3415 & 22397 of 2019 : 10 : candidates applying against each of the the locations would be classified under three groups:
(a) Group 1: Applicants having suitable piece of land in the advertised location/area either by way of ownership/long term lease for a period of minimum 19 years 11 months or as advertised by the OMC.
(b) Group 2: Applicants having Firm Offer for a suitable piece of land for purchase or long term lease for a period of minimum 19 years 11 months or as advertised by the OMC.
(c) Group 3: Applicants who have not offered land in the application.
Applications under Group 3 would be processed/advised to offer land only in case no eligible applicant is found or no applicant get selected under Group 1 and 2. Selection will be made through draw of lots or bidding process depending upon the type of Retail outlet site. The petitioner in W.P.(C) No.22397/2019 had applied against the location advertised as Serial No.209 'from Chelad to Kothamangalam'. His WP(C) No.3415 & 22397 of 2019 : 11 : application under Group 1 was the only application under Group 1.
14. During the de-duplication process, after conducting site visits it was noted that the locations advertised were falling outside the limits and hence were wrongly categorised. Therefore, the respondents had to cancel the location, contended the Standing Counsel.
15. Heard the learned counsel for the petitioners and the learned Standing Counsel for the respondents.
16. The respondents notified the locations in respect of which the petitioner in WP(C) No.22397/2019 submitted applications, as "Rural Retail Outlet". Subsequently, during the de-duplication process, which is an arrangement between the oil marketing companies, it was noted that the locations advertised by the 1st respondent would fall under the category "Regular ROs". The case of the petitioner in WP(C) No.22397/2019 is that his locations is in Rural area beyond Municipal limits. The respondents cancelled the selection process because the notification issued by them was WP(C) No.3415 & 22397 of 2019 : 12 : erroneous. As regards the petitioner in WP(C) No.3415/2019, the outlet was shown in the advertisement as Regular Retail Outlet, and later it was found that it does not fall under the said category.
17. Here, it is to be noted that the categorisation 'Regular' and 'Rural' made by the respondents, is not strictly on the fact whether a Retail Outlet falls in Rural area or Urban area. Even if a location is in rural area, if the location falls on National Highways, State Highways, Express ways or A, B & C Class Markets, it will be categorised as "Regular" and not "Rural". In this case, the mistake committed by the Oil Company was in the advertisement. The locations of petitioners may or may not satisfy the categorisation in the advertisement. If the respondents have made errors in their advertisement, they are bound to correct the same, else it will affect chances of others who would have submitted applications had the locations been described properly.
18. Furthermore, the General Conditions of the 1 st respondent pertaining to advertisement, reserves the right of WP(C) No.3415 & 22397 of 2019 : 13 : the Company to cancel/withdraw/amend the advertisement. In such circumstances, setting aside the cancellation of selection process for violation of principles of natural justice, will not serve any useful purpose. As long as final allotment of dealership is not made by the Company, the petitioners do not have any vested right to start Retail Outlets.
In the circumstances, this Court finds no reason to interfere with the decision taken by the respondents. Both the writ petitions are hence dismissed.
Sd/-
N. NAGARESH, JUDGE aks/16.04.2021 WP(C) No.3415 & 22397 of 2019 : 14 : APPENDIX OF WP(C) 3415/2019 PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE RELEVANT PAGES OF THE ADVERTISEMENT PUBLISHED BY THE 1ST RESPONDENT DATED 25.11.2018 EXHIBIT P2 TRUE COPY OF THE RELEVANT PAGES OF THE BROCHURE RELATING TO SELECTION OF DEALERS FOR REGULAR AND RURAL RETAIL OUTLETS.
EXHIBIT P3 TRUE COPY OF THE APPLICATION DATED 23.12.2018 SUBMITTED BY THE PETITIONER EXHIBIT P4 TRUE COPY OF THE PRINT OUT OF THE E-
MAIL DATED 22.1.2019 SENT BY THE 2ND RESPONDENT TO THE PETITIONER EXHIBIT P5 TRUE COPY OF THE PRINT OUT OF THE RELEVANT PAGE OF THE WEBSITE OF THE 1ST RESPONDENT SHOWING THE SHORTLISTED CANDIDATES FOR LOCATION NO.611 EXHIBIT P6 TRUE COPY OF THE PRINT OUT OF THE RELEVANT PAGE OF THE WEBSITE OF THE 1ST RESPONDENT EXHIBIT P7 TRUE COPY OF THE E-MAIL DATED 01-03- 2019 SENT BY THE 1ST RESPONDENT.
EXHIBIT P8 TRUE COPY OF THE RELEVANT PAGE OF THE ADVERTISEMENT SHOWING SL. NO. 646 PUBLISHED BY THE 1ST RESPONDENT ON 25/11/2018 EXHIBIT-P8(A) TRUE COPY OF THE RELEVANT PAGE OF THE ADVERTISEMENT SHOWING THE LOCATION ADVERTISED BY HPCL EXHIBIT-P9 TRUE COPY OF THE RELEVANT PAGE OF THE ADVERTISEMENT SHOWING THE LOCATION AGAINST SL. NO. 626, PUBLISHED BY THE 1ST RESPONDENT ON 25/11/2018 WP(C) No.3415 & 22397 of 2019 : 15 : EXHIBIT-P9(A) TRUE COPY OF THE RELEVANT PAGE OF THE ADVERTISEMENT SHOWING THE LOCATION ADVERTISED BY THE BPCL EXHIBIT-P10 TRUE COPY OF THE RELEVANT PAGE OF THE ADVERTISEMENT SHOWING THE LOCATION AGAINST SL NO. 624, PUBLISHED BY THE 1ST RESPONDENT ON 25/11/2018 EXHIBIT-P10(A) TRUE COPY OF THE RELEVANT PAGE OF THE ADVERTISEMENT SHOWING THE LOCATION ADVERTISED BY BPCL WP(C) No.3415 & 22397 of 2019 : 16 : APPENDIX OF WP(C) 22397/2019 PETITIONER'S EXHIBITS EXHIBIT P1 TRUE COPY OF THE ADVERTISEMENT IN THE MALAYALA MANORAMA DAILY DATED 25-11- 2018 EXHIBIT P2 TRUE COPY OF THE RELEVANT PORTION OF THE BROCHURE GIVING THE GUIDELINES ON SELECTION OF DEALERS FOR REGULAR & RURAL RETAIL OUTLETS EXHIBIT P3 TRUE COPY OF THE APPLICATION DATED 16- 12-2018 SUBMITTED BY THE PETITIONER.
EXHIBIT P4 TRUE COPY OF THE INTIMATION DATED 13- 1-2019, INTIMATING THE SELECTION EXHIBIT P5 TRUE COPY OF THE INTIMATION DATED 13- 1-2019 FOR PRODUCTION OF DOCUMENTS AND FOR REMITTANCE OF SECURITY DEPOSIT EXHIBIT P6 TRUE COPY THE REPRESENTATION DATED 23- 2-2019 SUBMITTED BY THE PETITIONER EXHIBIT P7 TRUE COPY OF THE CERTIFICATE DATED 12- 2-2019 ISSUED BY THE TAHSILDAR, KOTHAMANGALAM EXHIBIT P8 TRUE COPY OF THE INTIMATION DATED 24- 5-2019 CANCELLING THE LOCATION EXHIBIT P9 TRUE COPY OF THE REPRESENTATION DATED 30-05-2019 SUBMITTED BY THE PETITIONER EXHIBIT P10 TRUE COPY OF THE CERTIFICATE DATED 7-
3-2019, ISSUED BY THE SECRETARY,
KOTHAMANGALAM MUNICIPALITY
WP(C) No.3415 & 22397 of 2019
: 17 :
EXHIBIT P11 TRUE COPY THE REMINDER LETTER DATED
20-07-2019 SUBMITTED BY THE
PETITIONER.
EXHIBIT P12 TRUE COPY OF THE REPLY DATED 14.8.2019
ISSUED BY THE RESPONDENTS TO THE
PETITIONER.
EXHIBIT P13 TRUE COPY OF THE BACK SIDE OF THE
ENVELOPE BY WHICH THE LETTER WAS SENT
TO THE APPLICANT SHOWING THE DATE OF
DELIVERY OF THE LETTER.
SR