Karnataka High Court

Ms Sunitha vs M/S Bharath Petroleum ... on 10 March, 2022

Bench: P.Krishna Bhat

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 10TH DAY OF MARCH, 2022

                        BEFORE

        THE HON'BLE MR.JUSTICE P. KRISHNA BHAT

       WRIT PETITION No.57127/2014 (GM-RES)

BETWEEN :

MS. SUNITHA,
D/O SRI KRISHAN REDDY,
AGED ABOUT 29 YEARS,
# B 79, 3RD MAIN ROAD,
B.T.M. 1ST STAGE,
BANGALORE-560 029.
                                     ...PETITIONER

(BY SRI D.ASHWATHAPPA, ADVOCATE (ABSENT))

AND :

1.     M/S. BHARATH PETROLEUM
       CORPORATION LTD.,
       (GOVT. OF INDIA ENTERPRISES),
       REGISTERED OFFICE AT BHARATH BHAVAN,
       # 4 & 6, CURRIMBHOY ROAD,
       BALLARD ESTATE, P.B.NO.688,
       MUMBAI-400 001.
       REP. BY ITS AUTHORIZED AUTHORITY,

2.     THE REGIONAL LPG MANAGER (SOUTH),
       SOUTHERN REGIONAL OFFICE,
       NO.1, RANGANATHA GARDEN,
       11TH MAIN ROAD, P.B.NO.1212 & 1213,
       ANNA NAGAR, CHENNAI-600 040.
                      -2-


3.   THE TERRITORIAL MANAGER (LPG),
     M/S. BHARATH PETROLEUM CORPORATION LTD.,
     BANGALORE TERRITORY OFFICE,
     # 17, 7TH FLOOR, DU PARC TRINTY,
     M.G.ROAD, BANGALORE-560 001.

4.   M/S. MANASA BHARATH GAS,
     # 1766/1072, SARJAPUR VILLAGE,
     ANEKAL TALUK,
     BANGALORE URBAN DISTRICT-562 125.
     REP. BY ITS PROPRIETOR,
     SRI. RAHUL ANNASAHEB ADI:

     ALSO AT:
     SRI RAHUL ANNASAHEB ADI,
     S/O ANNASAHED BASEPPA ADI,
     AGED ABOUT 27 YEARS,
     # 92, 8TH 'A' MAIN,
     HMT LAYOUT, R.T.NAGAR,
     BANGALORE-560 032.
                                   ...RESPONDENTS

(BY SRI R.GOPALAKRISHNA, ADVOCATE FOR R1 TO R3
    SRI SIBU GOPINATHAN, ADVOCATE FOR
    SRI BALARAM M. L., ADVOCATE FOR R4 APPEARING
    THROUGH PHYSICAL HEARING)

     THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING
TO QUASH GRANT OF LPG DISTRIBUTORSHIP MADE BY
THE R-3 VIDE LETTER DATED 31.12.2013 VIDE ANN-F IN
FAVOUR OF R-4 AND DIRECT THE RESPONDENTS TO
REDO THE ENTIRE PROCESS OF SELECTION OF LPG
DISTRIBUTORSHIP WITH RESPECT TO SARJAPUR, ANEKAL
TALUK, BANGALORE DISTRICT AT SL.NO.55 MENTIONED
IN THE NEWSPAPER PUBLICATION BY PROVIDING
OPPORTUNITY TO THE NEEDY AND ELIGIBLE APPLICANTS
INCLUDING THE PETITIONER BY MAKING THOROUGH
                        -3-


SCRUTINY OF THE APPLICATIONS WOULD BE FILED BY
THE APPLICANS AND ETC.,

     THIS PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:

                           ORDER

Respondent No.1 wanted dealers for distribution

of LPG cylinders (domestic) in various areas of the

State and it put out an advertisement in this behalf as

per Annexure-A. Petitioner as well as respondent No.4

and large number of others have made application

seeking allotment of dealership. Petitioner and

respondent No.4 applied for allotment of dealership in

Sarjapur area at Sl.No.55 in Annexure-A. Respondent

Nos.1 to 3 considered the various applications and

prepared eligibility list for allotment of dealership as

well as prepared the list of persons who are ineligible

for allotment of dealership and they have been

produced by the petitioner as per Annexures-C, C1

and C2. The name of the petitioner finds place in

Annexure-C2 at Sl.No.6. Respondent Nos.1 to 3 have

put her name in the list of ineligible persons for

allotment of dealership on the ground "minimum

funds not provided, land not provided". By allotment

letter dated December 31, 2013 (Annexure-F), the

dealership for Sarjapur area (Sl.No.55) in Annexure-A

was allotted to respondent No.4 subject to certain

terms and conditions. The relevant terms and

conditions are as follows:

"Mr. RAHUL ANNASAHEB ADI NO.92, 8TH A MAIN, HMT LAYOUT, RT NAGAR BANGALORE-560032

Dear Sir, Subject: PROPOSED LPG DISTRIBUTORSHIP AT SARJAPURA DIST:BANGALORE RURAL CATETGORY- OPEN MKT. PLAN 2012-2013

Please refer to your application Serial Number BLR:SAR:030 on the subject and the subsequent draw held for selection at LPG Plant & Territory Office at Solur on 05.10.2013.

It is intended to offer you LPG distributorship at SARJAPURA on the conditions that you will:-

1.LPG STORAGE GODOWN & SHOWROOM

You should provide a godown for storage of 8000 kg (minimum) of LPG filled in cylinders. The LPG Storage godown should be approved and licensed by Chief Controller of Explosives of Petroleum and Explosives Safety Organization (PESO) and should have mastic flooring.

You should also have a showroom of dimensions 3m x 4.5 m in the advertised location or locally specified in the advertisement.

The construction of godown and showroom should be completed within a period of four months from the date of this letter. Both godown and showroom should be freely accessible through all weather motorable approach road (public road or private road of the applicant connecting to the public road).

Construction of godown/showroom should be commenced only after permission in writing is obtained from this office.

2.FINANCE:

Make all financial arrangements for operating the Distributorship within four months from the date of this letter.

3.DELIVERY INFRASTURE

Make arrangements for delivery vehicles for effecting home delivery of LPG cylinders.

4.PERSONAL SUPERVISION

You should personally manage the LPG distributorship operations.

5.COMMISSIONING:

5.1. Make all out efforts to commission the LPG distributorship within four months from the date of this letter."

2. The petitioner has approached this Court

seeking the following prayers.

(i) Issue a writ or order or direction by way of certiorari to quash grant of LPG Distributorship made by the Respondent No.3 vide letter bearing No.BLR:LPGMMP:SARJAPURA, dated 31.12.2013 vide Annexure-'F' in favour of Respondent No.4:

    (ii)     Issue a writ or order or direction by
             way of mandamus directing the
             Respondents to redo the entire
             process     of   selection    of   LPG
             Distributorship    with    respect   to

Sarjapur, Anekal Taluk, Bangalore District at Sl.NO.55 mentioned in the Newspaper publication by providing opportunity to the needy and eligible applicants including the Petitioner by making thorough scrutiny of the Applications Would be filed by the Applicants:

(iii) Issue a writ of mandamus and direction in the nature of mandamus

to take action against the official concerned for scrutiny of the applications filed for securing LPG Distributorship as per the paper publication published in the year 2012 with respect to Sarjapur, Anekal Taluk, Bangalore District by initiating enquiry against them;

(iv) Issue any such other writ, order or direction as this Hon'ble Court deems fit in the facts and circumstances of the case including awarding costs, in the interest of justice and equity."

3. As could be made out from the above, the

petitioner has only challenged the allotment of

dealership to respondent No.4 (Annexure-F) and she

has not called in question the list prepared by

respondent Nos.1 to 3 placing the name of the

petitioner in the category of persons who are ineligible

for allotment of dealership on account of their not

satisfying the requirements of financial capacity and

also possessing sufficient lands.

4. It is contended on behalf of the

respondents that the petitioner is not entitled to

question the allotment of dealership made to

respondent No.4 without challenging the decision of

respondent Nos.1 to 3 placing her in the list of

persons who are ineligible for allotment of dealership.

Respondent Nos.1 to 3 have given clear reasons as to

why petitioner is not eligible to be granted dealership

namely, for want of financial capacity and inability to

provide sufficient land.

5. In that view of the matter, the writ petition

should fail mainly on the ground that the petitioner

has not challenged the decision of respondent Nos.1

to 3 placing her in the list of ineligible person for

allotment of dealership.

6. Learned counsel for the respondents also

contended that mandamus of the nature sought by

the petitioner for re-doing the list cannot be issued

unless the petitioner shows her clear and

demonstrable rights of eligibility to be awarded

dealership.

7. In this behalf, my attention has been

drawn to the observations of the Hon'ble Supreme

Court in the case of Director of Settlements, A.P.

and Others, Vs. M.R.Apparao and Another

reported in AIR 2002 SC 1598, wherein paragraph

No.17 reads as follows:

"Coming to the third question, which is more important from the point of consideration of High Court's power for issuance of mandamus, it appears that the constitution empowers the High Court to issue writs, directions or orders in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the rights conferred by Part III and for any other purpose under Article 226 of the Constitution of India. It is, therefore essentially, a power upon the High Court for issuance of high prerogative writs for enforcement of fundamental rights as well as non-fundamental or ordinary legal rights, which may come within the expression 'for any other purpose'. The powers of the High Courts under Article 226 though are discretionary and no limits can be placed upon

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their discretion, it must be exercised along recognised lines and subject to certain self- imposed limitations. The expression 'for any other purpose' in Article 226, makes the jurisdiction of the High Courts more extensive but yet the Court must exercise the same with certain restraints and within some parameters. One of the conditions for exercising power under Article 226 for issuance of a mandamus is that the Court must come to the conclusion that the aggrieved person has a legal right, which entitles him to any of the rights and that such right has been infringed. In other words, existence of a legal right of a citizen and performance of any corresponding legal duty by the State or any public authority, could be enforced by issuance of a writ of mandamus. "Mandamus" means a command. It differs from the writs of prohibition or certiorari in its demand for some activity on the part of the body or person to whom it is addressed. Mandamus is a command issued to direct any person, corporation, inferior Courts or Government, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. A mandamus is available against any public authority including administrative and local bodies, and it would lie to any person who is under a duty imposed by statute or by the common law to do a particular act. In order to obtain a writ or order in the nature of mandamus, the applicant has to satisfy that he has a legal right to the performance of a legal duty by the party against whom the mandamus is sought and such right must be subsisting on the date of the petition.{Kalyan Singh vs. State of U.P., AIR 1962 SC 1183}. The duty that may be enjoined by mandamus may be one imposed by the Constitution, a statute, common law or by rules or

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orders having the force of law. When the aforesaid principle are applied to the case in hand, the so-called right of the respondents, depending upon the conclusion that the amendment Act is constitutionally invalid and, therefore, the right to get interim payment will continue till the final decision of the Board of Revenue cannot be sustained when the Supreme Court itself has upheld the constitutional validity of the amendment Act in Venkatagiri's case on 4th of February, 1986 in Civil Appeal No. 398 & 1385 of 1972 and further declared in the said appeal that interim payments are payable till determination is made by the Director under Section 39(1). The High Court in exercise of power of issuance of mandamus could not have said anything contrary to that on the ground that the earlier judgment in favour of the respondents became final, not being challenged. The impugned mandamus issued by the Division Bench of the Andhra Pradesh High Court in the teeth of the declaration made by the Supreme Court as to the constitutionality of the amendment Act would be an exercise of power and jurisdiction when the respondents did not have the subsisting legally enforceable right under the very Act itself. In the aforesaid circumstances, we have no hesitation to come to the conclusion that the High Court committed serious error in issuing the mandamus in question for enforcement of the so-called right which never subsisted on the date, the Court issued the mandamus in view of the decision of this Court in Venkatagiri's case. In our view, therefore, the said conclusion of the High Court must be held to be erroneous."