Khandelwal Oil Company vs Indian Oil Corporation Ltd & Ors.
2012 Latest Caselaw 1581 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                          Date of decision: 6th March, 2012

+                         LPA No. 183/2012

%       KHANDELWAL OIL COMPANY                    ....Appellant
                   Through: Mr. Sanat Kumar, Adv.

                                    Versus

    INDIAN OIL CORPORATION LTD & ORS.        .... Respondents
                  Through: Mr. M.M. Kalra & Mr. Kunal Kalra,
                           Advs. for R-1.
                           Mr. Ajay Verma, Adv. for R-2.
                           Mr. Amit Mehra, Adv. for R-2.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                                 JUDGMENT

RAJIV SAHAI ENDLAW, J.

1. This Intra-Court appeal impugns the judgment dated 20th October,

2011 of the Learned Single Judge dismissing W.P.(C) No.8776/2009

preferred by the appellant, as also the order dated 14 th December, 2011

dismissing the petition for review filed by the appellant. The counsels for

the respondents appeared on advance notice and we have with the consent

of the counsels, heard them at length at this stage.

2. The appellant was a dealer since the year 1975 of M/s IBP Co. Ltd.

being the predecessor of the respondent no.1 Indian Oil Corporation Ltd.

(IOC) with the petrol pump at village Rasulpur on the State Highway (SH-

33), Mathura Bharatpur Road, District Mathura, U.P. It appears that the

appellant in or about the year 1997-98 applied for resitement of his retail

outlet from Mathura to Chandigarh. The then IBP Co. Ltd. vide its letter

dated 16th February, 1998 sought approval of the Ministry of Petroleum and

Natural Gas, Govt. of India for such resitement of the appellant. While

seeking the said approval, it was stated that the appellant was "C" site retail

outlet situated in a isolated area at the border of Rajasthan and Haryana; that

the law and order situation in UP is far from satisfactory and criminal

activities were increasing in the area; a partner of the appellant had also

been attacked and an attempt was also made to kidnap him. The Ministry,

vide its letter dated 16th April, 1999 granted permission for the appellant

being resited at Chandigarh subject to the resited location meeting the

volume distance norms. It further appears that the appellant thereafter

sought resitement at National Capital Region (NCR) instead of at

Chandigarh and approval thereof was also granted by the Ministry vide its

letter dated 20th March, 2001.

3. It is further the case of the appellant that though IBP Co. Ltd. had

requested various land owning agencies to allot suitable land for resitement

of the appellant but upon the merger of IBP Co. Ltd. with the respondent

no.1 IOC, the respondent no.1 IOC stopped pursuing the case for resitement

of the appellant. The appellant then filed W.P.(C) No.7022/2008 which was

however withdrawn on 26th September, 2008 with liberty to file afresh if

need arose, after submitting a representation to the respondent no.1 IOC.

4. The appellant submitted a representation dated 14th October, 2008 to

the respondent no.1 IOC. The respondent no.1 IOC however informed that it

was not obligatory on the respondent no.1 IOC to arrange the land in the

NCR region for resitement of the appellant and it was the responsibility of

the appellant to arrange for land and infrastructure for resitement to be

effected.

5. The appellant thereafter filed the writ petition from which this appeal

arises contending that, it was the responsibility of the respondent no.1 IOC

to arrange the land as was evident from the respondent no.1 IOC and IBP

Co. Ltd. also writing to the various land owning agencies in this regard. The

respondent no.1 IOC however in its counter affidavit pleaded that since the

existing retail outlet of the appellant was not an "A" site, there was no

responsibility on the respondent no.1 IOC to procure land for resitement of

the appellant. The appellant in rejoinder pleaded that the respondent no.1

IOC had been describing the existing site of the appellant sometimes as a

"B" site and sometimes as "C" site; that however the existing site of the

appellant was an "A" site in as much as the existing retail outlet at village

Rasulpur on the State Highway (SH-33), Mathura Bharatpur Road, District

Mathura, U.P. was situated on a land taken on lease by the respondent no.1

IOC in its own name. The appellant in the aforesaid writ petition had also

impleaded DDA as respondent no.2 seeking mandamus for allotment of land

for resitement of the appellant. It was however the contention of the

respondent no.2 DDA that since the year 2003 the Policy of the respondent

no.2 DDA had been to make all such allotments by public auction and

which Policy had been upheld by the Supreme Court.

6. The Learned Single Judge dismissed the writ petition holding that the

appellant in the writ petition had not raised the issue that its existing site

was an "A" category site; that the respondent no.1 IOC had consistently

taken the stand that the appellant‟s existing site was "B" category site; that

these disputes of fact could not be adjudicated in writ jurisdiction. The

Learned Single Judge further held that even if the appellant‟s existing site

were to be held to be "A" category site the appellant did not automatically

became entitled to claim resitement at Delhi at the cost of the respondent

no.1 IOC. It was also the contention of the appellant before the Learned

Single Judge that the respondent no.1 IOC had in four other cases upgraded

the category "B" dealerships to category "A" dealerships. The Learned

Single Judge however held that the respondent no.1 could not be expected to

purchase land out of its own funds in a public auction at Delhi to relocate

the appellant from village Rasulpur on the State Highway (SH-33), Mathura

Bharatpur Road, District Mathura, U.P at Delhi.

7. The counsel for the appellant has before us not insisted upon

resitement at Delhi and has given up the claim against the respondent no.2

DDA. He however seeks a direction for the respondent no.1 IOC to apply in

the remaining NCR for allotment of land for such resitement. It is also

offered that upon such an application being made by the respondent no.l

IOC, the appellant shall pursue the same.

8. The counsel for the respondent no.1 IOC per contra has contended

that if the respondent no.1 were to apply for the land it would imply that the

respondent no.1 IOC will have to pay for the same and which neither is it

ready to nor it is liable to.

9. We have enquired from the counsel for the appellant as to what is the

right of the appellant to compel the respondent no.1 IOC to at its own cost

acquire land for resitement of the appellant. No such right has been

disclosed. The only argument of the counsel for the appellant is that some

others have been upgraded from category "B" to category "A".

10. More than 14 years have elapsed since the time appellant had applied

for resitement citing law and order and safety issues. We have enquired

whether there has been any incident or any FIR has been lodged by the

appellant in the last 14 years. The answer is in the negative. On the contrary,

there has been a sea change in the last 14 years. Not only has there been a

huge development in the area and the existing site of the appellant can no

longer be said to be secluded but also improvement in the law and order

situation as is evident from the last 14 years being incident free. There has

also been change in the Policy of the respondent no.1 IOC and other oil

companies regarding allotment of petrol pump sites. The matter has gone till

the Supreme Court and guidelines have been laid down. We are of the

opinion that directing the respondent no.1 IOC to, obviously at a huge cost

acquire land for resitement of the appellant will necessarily have to be at the

cost of some other eligible and needy person in accordance with the

prevalent guidelines. We may also mention that at the time when the

appellant had applied for resitement and permission therefor was granted,

there was no such understanding that the land for such resitement would be

acquired by the then IBP Co. Ltd. which has merged with the respondent

no.1 IOC. There is no document to show that for the reason of the

respondent no.1 IOC / its predecessor having recommended the case of the

appellant for resitement, the respondent no.1 is obliged to also arrange for

the land at its own cost. In the absence thereof, the mandamus as claimed

cannot be issued.

11. Thus for the reasons recorded by the Learned Single Judge, as also for

the reasons added by us, the appellant is not entitled to any relief; the appeal

is dismissed. No order as to costs.

RAJIV SAHAI ENDLAW, J

ACTING CHIEF JUSTICE

MARCH 6, 2012 „pp‟