Delhi High Court
M/S Chaubey K.Oil Depot vs Commissioner Food & Supply & Anr. on 25 March, 2009
Author: S.Ravindra Bhat
4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 25.03.2009
+ W.P. (C) 9479/2005
M/S CHAUBEY K.OIL DEPOT ..... Petitioner
Through: Mr. T.N. Tripathi, Advocate.
versus
COMMISSIONER FOOD & SUPPLY & ANR. ..... Respondents
Through: Ms. Anju Bhattacharya,
Advocate.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
1. Whether the Reporters of local papers
may be allowed to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be
reported in the Digest?
S.RAVINDRA BHAT, J.
% Issue Rule. Ms. Anju Bhattacharya, Advocate waives notice of Rule.
With consent, the matter was heard finally, for disposal.
2. The petitioner had applied for issuance of Kerosene Oil Depot (KOD)
License on 2.12.1996 in Nand Nagri area. Fourteen other applicants had
sought the license. Two were ultimately short listed, i.e., the petitioner and
one M/s Neeraj Kerosene Oil Depot, acting through its proprietor Neeraj
Kumar. Both the shortlisted candidates were operating from tenanted
premises. However, the petitioner's application was preferred on the ground
that his tenancy was better or superior. The rival applicant appealed
unsuccessfully, after which he approached this Court under Article 226 of the
Constitution.
3. By a judgment dated 3.12.2002 (CWP-4129/1998 i.e. M/s Neeraj KOD v.
The Commissioner), this Court quashed the petitioner's allotment reasoning
that since both applicants were operating from tenanted premises, the
agency could not have discriminated in favour of one on the ground of
"superior" conditions of lease. The petitioner's appeal by Letters Patent was
rejected, since the matter was remitted for reconsideration.
4. The Assistant Commissioner, who reconsidered the matter on remand,
on 4.2.2003 decided that having regard to the card position in the notified
area, and the circumstance that two other outlets were functioning, there
was no necessity for allotting another KOD. The petitioner as well as M/s
Neeraj KOD appealed to the Commissioner, who by an order dated
28.10.2003 affirmed the determination of the Assistant Commissioner. The
Commissioner reasoned as follows: -
"Careful perusal of the directions of the Hon'ble High Court
clearly indicates that the cases have been remanded back
to the department to consider the case in accordance with
the existing rules. Without going into the merits of the case
and suitability of the appellants, it is to be ascertained in
the 1st place, whether or not, an additional KOD is required
in the notified area. FSO (Vigilance) tells me that as on
April, 2003, 1106 blue cards are there in the notified area.
The departmental norms provide for 850 cards per KOD. As
such, it can be seen that existing 2 KODs are adequate to
take care of the demand of the notified area. I, therefore,
agree with the recommendations of the Screening
Committee dated 29.01.2003 and the orders passed by AC
(NE) dated 4.2.2003 so far as the requirement of additional
KOD is concerned."
5. The petitioner's appeal to the Financial Commissioner was rejected.
The petitioner contends that having determined that there was a need for a
KOD and invited applications the authorities cannot now re-visit the issue
and hold that he is dis-entitled to the license. It is contended that besides,
guidelines and Circulars vis-à-vis the minimum eligibility in regard to
existence of card position in one or the other outlet has remained
unchanged; therefore, the respondents are now acting arbitrarily in holding
that the petitioner is not entitled to the license.
6. The respondents submit that according to the fresh determination
arrived at after considering the card position, the Assistant Commissioner
discovered that only 1064 card holders existed in the notified area i.e. 3806.
It is further submitted that two units were operating and that according to
the freshly notified norms, the unit is considered viable if there are minimum
850 cards, attached to it. Ms. Anju Bhattacharya, learned counsel for the
respondents submitted that these criteria were reiterated in guidelines,
formulated on 30.5.2008.
7. Evident from the above discussion is that initially the lis before this
Court was due to the preference by the Department to one applicant over
the other on the ground of so called "superior" tenancy. This Court dispelled
said definition holding that when both applicants are tenants, there can be
no further grounds for sub-classification. The matter was ultimately remitted
to the authorities. By the present determination neither the petitioner nor
the rival applicant has been awarded the outlet. The authorities have
determined that a third outlet is not permissible since the existing card
position is 1064. It is also a matter of record - borne out by the respondents'
counter affidavit that according to the fresh norms applicable deeming
viability of each Unit, a minimum of 850 card holders have to exist.
Concededly, that is not the position today. The respondents further state
that guidelines in that regard were framed and published w.e.f. 30.5.2008.
8. While the petitioner may have had some expectations of allotment of
KOD when he approached the respondents in response to their Notification,
the same did not crystallize into clear rights in the absence of statutory
interdict. The mere circumstance that he was shortlisted as a candidate
qualifying for further consideration, did not result in any better status. His
position at the highest could be akin to a selected candidate named in a
panel. The Constitution Bench in Sankarshan Dash v. Union of India 1991 (1)
SCC 47, has ruled that even a candidate included in the selection list does
not have indefeasible right to be appointed or given the position. The
petitioner's claim is no better; he has no enforceable right. The respondents,
while declining to grant allotment, in such instances have to show that there
was a reason for their refusal, germane to the issue. The Court's jurisdiction
is confined to enquiring into that aspect.
9. Such being the position in law and also in view of the changed policy,
the Court is of the opinion that the denial of allotment to the petitioner is
neither arbitrary nor unreasonable.
10. The Writ Petition, therefore, cannot succeed. It is accordingly
dismissed.
S. RAVINDRA BHAT
(JUDGE)
MARCH 25, 2009
/vd/
