Santosh Kumar Singh & Anr vs Union Of India
2015 Latest Caselaw 1145 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Date of decision: 9th February, 2015

+                    LPA 13/2015 & CM No.565/2015 (for directions)

       SANTOSH KUMAR SINGH & ANR                .... Appellants
                  Through: Mr. A. Maitri with Ms. Radhika
                           Chandrasekhar, Advs.

                                  Versus

       UNION OF INDIA                                      ..... Respondent
                    Through:         Ms. Suparna Srivastava, CGSC with
                                     Ms. Nishtha Sikroria, Adv. for UOI.

                                   AND
+                    LPA 43/2015 & CM No.1598/2015 (for stay)

       RAJA BAI & ANR                                      .... Appellants
                    Through:         Mr. A. Maitri, Adv.

                                  Versus
       UNION OF INDIA                                      ..... Respondent
                    Through:         Mr. Akshay Makhija and Mr.
                                     Kavindra Gill, Advs. for UOI.
CORAM:-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. Both appeals impugn the order dated 28th November, 2014 of the

learned Single Judge of this Court of dismissal in limine of W.P.(C)

Nos.8264/2014 & 8272/2014 filed by the appellants respectively. LPA

No.13/2015 came up first on 13th January, 2015, when the counsel for the

respondent Union of India (UOI) appeared on advance notice. After hearing

the counsels at admission stage, we reserved judgment. LPA No.43/2015

came up before us on 30th January, 2015, when on the contention of the

counsel for the appellants therein that the same was identical to LPA

No.13/2015 and we pronounce judgment in LPA No.43/2015 also, on the

basis of the arguments addressed in LPA No.13/2015, we reserved judgment

therein also.

2. The appellants filed the writ petitions from which these appeals arise,

contending;

(i) that they are dealers / operating retail outlets of Oil Marketing

Companies (who have not been made parties to the writ petitions /

appeals) and have their Petrol Pumps in the State of Uttar Pradesh;

(ii) that the appellants have invested huge monies in the said

business;

(iii) that as per the appellants' agreements with the Oil Marketing

Companies, the appellants have to achieve certain sale targets and if

fail to achieve the same, run the risk of the said agreements being

terminated;

(iv) that the Oil Marketing Companies however set up / allow to be

set up new retail outlets near the existing ones, in complete disregard

of the volume of business which can be generated in the area and

without conducting any feasibility / survey and which has the effect of

further lowering the sales of the existing outlets;

(v) that the said issue regarding norms for setting up of new retail

outlets was taken up in a meeting held on 9 th June, 2011 by the then

Minister of State for Petroleum and Natural Gas;

(vi) that in the said meeting, the Minister expressed concern over

the rapid mushrooming of retail outlets in the country, especially

when the new retail outlets set up by Oil Marketing Companies

directly cut into the volumes / margins of an existing retail outlet of

another Oil Marketing Company and which leads to a dealer indulging

in malpractices such as adulteration, short delivery etc. to make up for

the reduced margins;

(vii) that a decision was taken in the said meeting that the Oil

Marketing Companies should submit to the Ministry within two

weeks thereof, a proposal for norms for setting up of the new retail

outlets in different class of markets and thereafter the respondent will

issue guidelines for setting up / establishment of a new retail outlet;

(viii) however, no such proposals were submitted and hence no

guidelines for setting up of new retail outlets in terms thereof issued

by the respondent;

(ix) that a large number of petitions were filed in this Court in this

regard;

(x) that similarly the Himachal Pradesh Petroleum Dealers

Association also filed a petition in the Himachal Pradesh High Court;

(xi) that of all the writ petitions filed in this Court, all others except

W.P.(C) No.7689/2011 were withdrawn on the condition that the

interim order dated 9th January, 2012 in W.P.(C) No.7689/2011 would

be made applicable to the said writ petitioners also and that if W.P.(C)

No.7689/2011 succeeds, the same order will follow in the writ

petitions being withdrawn also;

(xii) that W.P.(C) No.7689/2011 titled Federation of All India

Petroleum Traders, Delhi Vs. Union of India was disposed of vide

order dated 2nd January, 2013 noticing that W.P.(C) No.3723/2010 of

the High Court of Himachal Pradesh filed by the Himachal Pradesh

Petroleum Dealers Association had been allowed by a learned Single

Judge of that Court vide judgment dated 17th May, 2012 and that the

respondent therein had preferred an appeal before the Division Bench

of the Himachal Pradesh High Court and by observing that both

parties shall abide by the final judgment of the Himachal Pradesh

High Court;

(xiii) that the learned Single Judge of the Himachal Pradesh High

Court in the judgment dated 17th May, 2012 directed Oil Marketing

Companies i.e. Bharat Petroleum Limited, Hindustan Petroleum

Corporation Limited and Indian Oil Corporation Limited to comply

with the action approved in the meeting held on 9 th June, 2011 within

a period of six weeks therefrom and directed the respondent UOI to

thereafter take a final decision and issue appropriate directions /

guidelines / instructions on the opening of new retail outlets and by

further directing that till then, the parties will maintain status quo as

prevailing on that date;

(xiv) that the appeal preferred by the UOI before the Division Bench

of the Himachal Pradesh High Court being LPA No.389/2012 was

disposed of vide order dated 5th March, 2014 on the statement of the

counsel for the UOI that directions contained in the judgment of the

learned Single Judge had already been complied with and

consequential follow up orders had been passed, inspite of the counsel

for the Himachal Pradesh Petroleum Dealers Association

controverting that the judgment of the learned Single Judge had not

been complied with;

(xv) that in view of the appeal preferred by the UOI having been so

withdrawn, the appeal preferred by Indian Oil Corporation Limited

against the order of the learned Single Judge of the Himachal Pradesh

High Court was also disposed of;

(xvi) that in fact the directions contained in the judgment of the

learned Single Judge of the Himachal Pradesh High Court had not

been complied with and hence no guidelines came to be issued by the

respondent UOI regarding setting up of new retail outlets taking into

account the concerns of the existing retail outlets found justified in the

meeting held on 9th June, 2011;

(xvii) that on the contrary, the respondent UOI had on 17th February,

2014 issued guidelines for setting up of new retail outlets and which

did not take into account the concerns found justified in the meeting

held on 9th June, 2011.

Accordingly, the writ petitions were filed impugning the said

new guidelines dated 17th February, 2014 on the ground of being non-

compliant with the decision taken in the meeting held on 9th June,

2011 and seeking a direction for formulation of guidelines in

accordance with the decision taken in the said meeting.

3. The learned Single Judge dismissed the writ petitions observing that

the decision to grant further outlets is a matter of policy and internal

functioning of the Oil Marketing Companies and there is no scope for this

Court to interfere with the same under Article 226 of the Constitution of

India, unless the policy is found to be discriminatory, unreasonable

capricious or mala fide and that the decision of the Oil Marketing

Companies with respect to establishing new retail outlets is clearly

commercial decision and this Court cannot examine the perception of

commercial viability or the merits of the decision of the Oil Marketing

Companies to establish new retail outlets. It was further held that the

appellants cannot make a grievance with respect to the violation of the

orders of the learned Single Judge of the Himachal Pradesh High Court in

these proceedings.

4. The counsel for the appellants argued, that the Division Bench of the

Himachal Pradesh High Court was misled; that the right asserted by the

appellants in the writ petitions from which these appeals arise is based on the

judgment of the Himachal Pradesh High Court; that in the writ petitions

earlier filed in this Court, it was agreed that the judgment of the Himachal

Pradesh High Court will be abided by. Lastly it is contended that another

writ petition being W.P.(C) No.3819/2014 titled Shyam Filling Station Vs.

Union of India also challenging the guidelines dated 17th February, 2014 is

still pending consideration.

5. Per contra, the counsel for the respondent UOI contended that the

appellants are seeking to enforce the judgment of the Himachal Pradesh

High Court before this Court and which is not permissible; else the

arguments as accepted by the learned Single Judge in the impugned order

are reiterated.

6. We had during the hearing enquired from the counsel for the

appellants, as to how this Court is the appropriate Court to entertain the

grievance, even if any of the appellants by a petition under Article 226 of the

Constitution of India. It was highlighted that the retail outlets of the

appellants are not situated within the jurisdiction of this Court and it was put

to the counsel for the appellants, whether not a more appropriate Court to

deal with the said grievance would be the High Court either at Allahabad /

Lucknow or the High Court of Himachal Pradesh.

7. The counsel for the appellants contended that since the grievance in

the present proceeding is confined to the Notification issued by the

respondent UOI, this Court would be the most appropriate Court and it is for

this reason that the appellants have not even impleaded the Oil Marketing

Companies with which each of the appellants have an agreement, as parties

hereto.

8. We further enquired from the counsel for the appellants as to how

remedy of writ, which is a public law remedy is available to the appellants.

The grievance of the appellants is qua their status as dealers / operators of

petroleum and petroleum products retail outlets under contracts with the Oil

Marketing Companies. In fact, we enquired, whether the said contracts

provide any such restriction regarding establishment of new retail outlets in

the vicinity.

9. Neither have the appellants filed any documents in this regard nor did

the counsel for the appellants have any instructions in this regard. Even after

the judgment has been reserved, no information in this regard has been

given; even in LPA No.43/2015 which was filed subsequently, nothing in

this regard has been stated.

10. The challenge by the appellants to the guidelines dated 17th February,

2014 on the ground of the same being contrary to the decision taken in the

meeting dated 9th June, 2011, in our opinion is misconceived. For

enforcement of the decision taken in the meeting dated 9th June, 2011, earlier

round of writ petitions were filed, in this Court as well as in the Himachal

Pradesh High Court. Though on enquiry it is informed that the appellants

themselves had then not filed writ petitions but the fact remains that the

appellants are claiming benefit of orders in those petitions. Upon getting a

favourable order from Single Judge of Himachal Pradesh High Court, the

writ petitions filed in this Court were withdrawn on conditions to be bound

by the ultimate decision / judgment in the Himachal Pradesh High Court

proceedings. The then writ petitioners were perhaps apprehensive that this

Court may give a decision different from that of the Single Judge of the

Himachal Pradesh High Court and thus chose to abide by the ultimate

decision in those proceedings. The appellants thus cannot re-agitate the

enforceability of the decision taken in the meeting dated 9th June, 2011 in

this petition, before this Court, having agreed to be bound by judgment in

Himachal Pradesh proceedings. The case of the appellants thus boils down

to the respondent UOI having not complied with the directions contained in

the judgment of the Himachal Pradesh High Court.

11. In the Himachal Pradesh proceedings, in the appeal it was recorded

that the directions contained in the judgment of the Single Judge had been

complied with. The appellants however contend that they were not.

12. We have enquired from the counsel for the appellants, whether the

Himachal Pradesh Petroleum Dealers Association or any other petroleum

dealer in the State of Himachal Pradesh has filed any petition or other

proceeding in the Himachal Pradesh High Court for non-compliance of the

directions contained in the judgment of the Single Judge of that Court or

with respect to the new guidelines dated 17th February, 2014, contending the

same to be in violation of the said guidelines.

13. The counsel for the appellants again had no instructions.

14. We find the same strange. It belies logic that the writ petitioner

therein, after obtaining a favourable order and if it had attained finality,

would not seek implementation thereof. Perhaps there were subsequent

developments, for which reason, now the Himachal Pradesh High Court is

not being approached.

15. The jurisdiction of this Court, in relation to the subject lis, having

earlier been invoked and abandoned, opting to be bound by the final order in

the Himachal Pradesh proceedings, we are of the opinion that it would not

be proper for this Court to now entertain the lis. Adjudication of the present

challenge would necessarily entail investigation into the statement made

before the Division Bench of the Himachal Pradesh High Court, that the

directions contained in the judgment of the learned Single Judge of that

Court had been complied with. A Bench of five judges of this Court has in

Sterling Agro Industries Ltd. Vs. UOI ILR (2011) VI Delhi 729 held that

this Court can refuse to entertain a petition under Article 226 of the

Constitution of India, if of the opinion that another High Court is more

appropriate High Court to deal with the issue. In the aforesaid facts, we are

of the considered opinion that the territorial jurisdiction of this Court having

been abandoned at any earlier stage, preferring the jurisdiction of the

Himachal Pradesh High Court, at least this Court is not the appropriate Court

to entertain the present challenge, whether the appropriate Court be the High

Court of Himachal Pradesh or the High Court of Allahabad within whose

territorial jurisdiction the retail outlets of the appellants are situated.

16. In this view of the matter, we deem it appropriate to also clarify that

in the event of the appellants approaching any other High Court, the reasons

on merits given by the learned Single Judge for dismissing the petitions shall

not bind the appellants.

The appeals are accordingly disposed of with no order as to costs.

RAJIV SAHAI ENDLAW, J.

CHIEF JUSTICE

FEBRUARY 9, 2015 'bs'