Dalit Shoshit Samaj Sangharsh ... vs Union Of India And 4 Others
2013 Latest Caselaw 6592 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 10
 

 
Case :- WRIT - C No. - 58778 of 2013
 

 
Petitioner :- Dalit Shoshit Samaj Sangharsh Samiti And Anr.
 
Respondent :- Union Of India And 4 Others
 
Counsel for Petitioner :- I.N. Singh,Ravi Kant
 
Counsel for Respondent :- A.S.G.I.,Tarun Varma,Vikas Budhwar
 

 
Hon'ble Arun Tandon,J.

Hon'ble Anjani Kumar Mishra,J.

Heard Sri Ravi Kant, Senior Advocate assisted by Sri I.N. Singh, Advocate on behalf of the petitioner, Sri Ashish Agrawal, Advocate on behalf of respondent no. 1, Sri Tarun Verma, Advocate on behalf of respondent no. 2, Sri Vikas Budhwar, Advocate on behalf of respondent no. 4.

Petitioner no. 1 claims to be the society registered in the name and style of Dalit Shoshit Samaj Sangharsh Samiti (D.S. Four) Allahabad, while petitioner no. 2 is a member of the said society. The members of the petitioner society belong to the Scheduled Caste. Petitioner no. 1 society looks after their interest.

This petition has been filed challenging the advertisement, which has been published in terms of the guidelines framed by the Oil Marketing Companies in the matter of selection of regular L.P.G. Distributorship by the nationalized three oil companies, namely Indian Oil Corporation, Bharat Petroleum Corporation and Hindustan Petroleum Corporation.

The advertisement is challenged before this Court on following grounds:

(a) The requirement of land measuring 25 Meter x 30 Meter within 15 K.M. from the municipal/town/village limit of the location, for the purposes of construction of the godown for L.P.G., must be possessed by the applicant on the date of making of the application is arbitrary, inasmuch as members of the petitioner society are poor person. The purpose of providing reservation in their favour will be frustrated by imposing such condition. It is submitted that the corporation should insist on the land being provided after a particular candidate is selected and not at the time of making of the application.

(b) The requirement of separate land being possessed by the applicant in respect of each location for which he makes application, i.e. if an applicant makes applications for four locations, he has to possess land at four places in terms of the policy guidelines, is arbitrary.

(c) The condition under clause 5 of the advertisement, wherein the spouse has been declared to be a co-owner of the dealership to the extent of 50% on being awarded the dealership, is arbitrary, inasmuch as in a given case the selected applicant may not like his spouse to be made a partner. The respondent cannot curtail the rights of the selected person to carry on his trade and business in the dealership as he so desires.

(d) The reservation as provided under the advertisement is 22.5% for Scheduled Caste and Scheduled Tribes is incorrect, as under the Government Order it should be 22.5% for the Scheduled Caste exclusively.

(e) The roster as applied in the advertisement in fact works out reservation to the extent of 19% in favour of the Scheduled Caste, when as per the policy it should be 22.5%.

(f) The stipulation that on being selected and being appointed as a dealer of the Oil Companies the dealer has to resign from the employment, if he/she is so employed, is a bad condition, inasmuch as the dealer can continue in employment and carry on his business of dealership simultaneously.

Counsel for the Corporation in reply submits that all the conditions as incorporated in the advertisement are strictly in accordance with the policy guidelines, which are not under challenge in this petition. According to the respondents the petitioner society has no locus to challenge the policy laid down by the Oil Marketing Company in the matter of allotment of dealership by the Government Oil Companies. He further submits that the guidelines as framed are in the larger interest of the public and in order to ensure that only bona fide applicants submit their application for being considered for dealership. The respondents explain that the reason for asking for ownership of land is in order to ensure that after being selected as a dealer the selected person surreptitiously do not induct owner of land for running of the dealership, as a result of which the dealership passes into the hands of moneyed people.

It is then submitted that there is no condition for the spouse to resign from the employment on her/his partner being selected as dealer. It is only the applicant who has to resign on being selected as a dealer.

The stipulation, for inducting the spouse as a co-owner, is to provide security to wives who are mostly housewife and are dependent for livelihood upon their husband.

It is lastly submitted that reservation of 22.5% has been provided strictly in accordance with the Government Order applicable. If there is any deficiency in the roster provided, the Oil Companies shall re-consider the same and if required necessary corrigendum shall be issued.

Counsel for the respondent has referred to the judgment of the Apex Court in the case of Mahindra Kumar Gupta vs. Union of India; 1995 SCC (1) 85, wherein it ha been laid down that the policy decision providing for the guidelines in the matter of award of dealership, distributorship of petroleum product by government undertaking cannot be subjected to challenge by an association, as it has no fundamental right under the Constitution of India.

Counsel for the petitioner in rejoinder referred to the judgment of the Apex Court reported in 2010 SCC (3) 274. It is contended that arbitrariness of a policy can always be challenged under Article 226 of the Constitution of India.

Having heard learned counsel for the parties and having examined the records, we find no substance in the contentions raised on behalf of the petitioners.

Before dealing with the grounds raised specifically, we may record that the petitioners, for the reasons best known to them, have not challenged the marketing guidelines under which the advertisement has been issued. They have only come forward to challenge the advertisement. The advertisement has been published in terms of the policy guidelines of the Oil Companies. The writ petition is liable to be dismissed on this ground alone. However, it would be appropriate that we may deal with specific objections raised point-wise.

The issues raised by the petitioners are to be examined in the legal background that the petitioners have no fundamental right to trade in L.P.G. They have only a right to be considered in the matter of grant of dealership in accordance with guidelines fixed by the Oil Marketing Companies and not de hors the same.

L.P.G. Is per se dangerous being explosive in nature. The dealer has to obtain a licence from the explosive department in respect of the godown where the L.P.G. Cylinders are to be kept. Therefore, the oil companies are entitled to lay down norms for ensuring that trade by dealers in L.P.G. is safe and secure.

Sufficiency of reasons or that there could be a better method for achieving the same purpose, as suggested by the petitioner, is no concern of writ Court under Article 226 of the Constitution of India in policy matters.

The first contention raised on behalf of the petitioner, qua applicant being possessed of the land measuring 25 meter x 30 meter at the time of the making of the application, in our opinion ignores the fact that such stipulation has only been made to ensure that only bona fide persons possessed of adequate land for construction of godown, where the L.P.G. Cylinders can be safely stored, submit their application. The counsel for the Oil Companies appears to be justified in submitting that this condition has been incorporated to avoid passing of the dealership into the hands of moneyed people after the selection of the person concerned. The requirement of the land, as mentioned, cannot be said to be without reason or arbitrary. It is for the authorities, providing for the policy guidelines, to decide as to what conditions must be satisfied by an applicant before his application can be entertained in the matter of selection for grant of dealership. Such policy decision can be questioned in a Court of law, only if it is demonstrated to be patently arbitrary. We find that the condition imposed is reasonable and for a purpose.

Under the policy guidelines there is provision that for each location the applicant must have land separately, for construction of a godown, and that too within 15 km. from the limit of municipal/town/village in respect whereof the dealership is applied for. It is in this background that while submitting an application the candidate has to furnish details of his being owner of land measuring 25 Meter x 30 Meter for the particular location.

A person possessed of land outside the limits defined, qua a particular location, is not qualified for being considered for grant of dealership in a particular municipal/town/village, as he will not be able to construct the godown in terms of the stipulations of the policy. The requirement of land separately for each location is, therefore, fair and just.

So far as the induction of the spouse as deemed co-owner to the extent of 50% is concerned, we find that such condition is in the larger public interest. The wives in poor country like India are mostly unemployed, and are dependent upon her husband for their livelihood. Their interest has to be protected and for this purpose the Oil Companies have come up with the stipulation that the spouse must be deemed to be a co-owner of 50% of the dealership. Such stipulation in our opinion need not be interfered by this Court, being in the larger interest of the society.

The stipulation with regard to the resignation from the employment by the applicant, on being selected as dealer, is also fair and just. Running of the dealership of L.P.G. is a whole time employment and a person cannot be expected to perform duties both as a dealer as well as an employee of a concern simultaneously. In these circumstances, the Oil Companies are justified in insisting that on being selected as dealer the person concerned must resign from the employment. The condition cannot be said to be arbitrary.

So far as the issue of extent of reservation being 22.5% in favour of Scheduled Caste category only is concerned, it may be recorded that the counsel for the petitioner has hopelessly failed to refer to any Government Order, which provided for 22.5% reservation for the Scheduled Caste candidate exclusively. The submission is therefore unfounded.

In respect of reservation of 22.5% having not been satisfied under the roster provided with the advertisement, we make it clear that if the petitioners have any such grievance, they may represent before the Coordinator of the Oil Companies within two weeks from today along with certified copy of this order. The Coordinator shall consider and decide the same by means of a reasoned speaking order, preferably within six weeks thereafter. All consequential action shall be taken accordingly in that regard.

Writ petition is disposed of subject to the observations made above.

Order Date :- 25.10.2013

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