Manu Prasad V vs Union Of India
2021 Latest Caselaw 17640 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
               THE HONOURABLE MR. JUSTICE T.R.RAVI
   FRIDAY, THE 27TH DAY OF AUGUST 2021 / 5TH BHADRA, 1943
                     WP(C) NO. 24767 OF 2020
PETITIONER:

         MANU PRASAD V.,
         AGED 29 YEARS
         S/O KUNHIKANNAN, VENGACHERY, THAYANOOR, KASARGOD,
         KERALA, PIN-671 531.
         BY ADVS.
         P.SREEKUMAR
         SHRI.ASWIN KUMAR M J
         SMT.HELAN P.A.
         SRI.SHAHIR SHOWKATH ALI


RESPONDENTS:

    1    UNION OF INDIA
         REPRESENTED BY THE SECRETARY TO MINISTRY OF
         PETROLEUM AND NATURAL GASES, SHASTRI BHAVAN,
         NEW DELHI-110001.
    2    BHARATH PETROLEUM CORPORATION LIMITED,
         REPRESENTED BY ITS CHIEF MANAGER (BUSINESS AND
         NETWORK PLANNING), RETAIL STATE OFFICE,
         IRUMPANAM INSTALLATION, COCHIN,PIN-682 309.
 W.P.(C)No.24767 of 2020
                                        :-2-:

     * 3        GANESH NAYAK,
                M/S SREE LAKSHMI FUELS, RESIDING AT BOVAKANAM
                HOUSE, P.O. MULIYUR, KASARGOD DISTRICT, PIN-671
                542. (CORRECTED)


                * R3. M/S.SREE LAKSHMI FUELS, REPRESENTED BY ITS
                MANAGER, P.O. MULIYUR, KASARGOD DISTRICT,
                PIN - 671 542.


                (THE DETAILS OF THE 3RD RESPONDENT IN THE CAUSE
                TITLE IN THE WRIT PETITION IS CORRECTED BY
                DELETING THE NAME 'GANESH NAYAK' APPEARING BEFORE
                THE NAME 'M/S.SREE LAKSHMI FUELS' AND THE WORDS
                'RESIDING AT BOVAKANAM HOUSE' APPEARING AFTER THE
                SAID NAME AND BY ADDING THE WORDS 'REPRESENTED BY
                ITS MANAGER' AFTER THE NAME 'M/S.SREE LAKSHMI
                FUELS', AS PER ORDER DATED 25.11.2020 IN
                I.A.NO.1/2020 IN WP(C)24767/2020)
                BY ADVS.
                SRI.M.GOPIKRISHNAN NAMBIAR, SC
                SRI.P.K.SUBHASH
                SRI.K.JOHN MATHAI
                SRI.JOSON MANAVALAN
                SRI.KURYAN THOMAS
                SRI.PAULOSE C. ABRAHAM
                SRI.RAJA KANNAN
                SRI.P.VIJAYAKUMAR, ASGI



        THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON    09.08.2021,         THE   COURT    ON     27.08.2021   DELIVERED   THE
FOLLOWING:
 W.P.(C)No.24767 of 2020
                                       :-3-:

                      Dated this the 27th day of August, 2021


                                JUDGMENT

The writ petition has been filed praying to cancel a dealership of

2nd respondent which was allotted to the third respondent and for a

direction to the second respondent to allot dealership with respect to

the retail outlets in resurvey No.298/3 in Mulliyur Village in Kasaragod

District after inviting applications from the eligible candidates.

2. Heard Sri.P.Sreekumar on behalf of the petitioner and

Sri.M.Gopikrishnan Nambiar, Standing Counsel for the second

respondent.

3. The grievance of the petitioner, who claims to be an

unemployed person, is that the second respondent is allotting

petroleum retail outlet without following the procedures prescribed.

According to the petitioner, the second respondent had taken a site on

lease in Mulliyur Village in Kasaragod District and has allotted the

dealership of the petroleum outlet to the third respondent without

inviting any application for allotment of dealership. It is submitted that

the petitioner had obtained the details of the allotment process under W.P.(C)No.24767 of 2020 :-4-:

the Right to Information Act and the same has been produced as

Ext.P1. As per Ext.P1, the dealership granted to the third respondent

is on an ad hoc basis which does not require inviting applications.

Ext.P2 guidelines have been produced by the petitioner stating that

the Unit established is a 'COCO Unit' (Company Owned and Company

Operated). Ext.P3 guidelines issued by the first respondent has also

been produced. The contention of the petitioner is that going by

Exts.P2 and P3, the second respondent was bound to invite

applications from eligible candidates for the grant of dealership and

having not done so, the dealership is liable to be cancelled.

4. The second respondent has filed a counter affidavit. It is

contended in the counter affidavit that the petitioner has no locus

standi to maintain the writ petition and he has not demonstrated in

any manner as to how he is aggrieved by the grant of an ad hoc

dealership to the third respondent. It is contended that the

proceedings initiated is more in a representative capacity and the

same cannot be permitted under Article 226 of the Constitution of

India, particularly, in the absence of any statutory violation. It is stated W.P.(C)No.24767 of 2020 :-5-:

in the counter affidavit that the second respondent had taken the

property having an extent of 35 cents in 2012 on lease for a period of

30 years. At the time of taking the lease, the intendment was to re-

site an existing outlet which had land related issues. It is stated that

the re-sitement did not materialise due to policy related issues and the

second respondent continued to hold the site on lease, paying the

monthly rent since 1.5.2012. In order to prevent continued idling of the

location and unnecessary expenditure, the second respondent

decided to set up a retail outlet at the location and run the same on ad

hoc basis. Along with the counter affidavit, Ext.R2(a) dated 5.3.2019

has been produced which is the policy regarding grant of ad hoc

dealership. It can be seen from Ext.R2(a) that in retail outlets at 'A'

site/corpus fund locations/terminated locations, ad hoc retail outlets

can be started on a temporary basis till such time a regular dealer is

selected through a selection process. The tenure of such ad hoc

dealership is one year and the purpose is only to prevent idling of

equipment and loss to the public exchequer. It is contended that

appointment of ad hoc dealership is a policy decision of the second W.P.(C)No.24767 of 2020 :-6-:

respondent which is not liable to be interfered with by this Court in

exercise of jurisdiction under Article 226 of the Constitution of India.

As per the policy, ad hoc dealership is usually given to existing

dealers and the third respondent along with six others were found

eligible and were called for interview. The third respondent was

selected from among the six persons who attended the interview on

the basis of the short-listing. It is submitted that it is not correct to say

that the second respondent has violated the guidelines. Regarding

COCO outlets, the second respondent has stated in the counter

affidavit that the decision regarding starting of COCO retail outlet is

dependent on sale potential in the location and as per the existing

policy, COCO retail outlets are started only if the sale potential of the

location is more than 250 kls. per month. Ext.R2(b) policy regarding

setting up of COCO outlets has been produced along with the counter

affidavit. It is stated that the sale potential at the place where the ad

hoc outlets are now situated is 201 kls. per month and that is the

reason why the dealership has been granted on an ad hoc basis.

According to the second respondent, the options available to the W.P.(C)No.24767 of 2020 :-7-:

second respondent is to operate the location as ad hoc retail outlet till

the site is divested in line with the extant policy for operation of retail

outlets through ad hoc dealership.

5. Learned counsel for the petitioner referred to Ext.P2 which

is a guideline for selection of COCO service provider, to submit that

the service providers are appointed after inviting applications through

advertisement in newspapers. According to the counsel, the

dealership was granted on ad hoc basis only to overcome the

requirement of advertising the dealership. Regarding the locus standi,

the counsel for the petitioner submits that since he is an unemployed

youth, he is eligible for being appointed as a retail dealer. Regarding

Ext.R2(a), the counsel submits that the circumstances for starting a

retail outlet on ad hoc dealership are that a company owned/leased

site is available or it is a corpus fund retail outlet or a terminated retail

outlet. It is pointed out that the policy was started on 2019, while the

site had been taken in 2012. The contention of the counsel is that the

site remained without any utility for seven years and it is only after

seven years that the second respondent thought of starting an ad hoc W.P.(C)No.24767 of 2020 :-8-:

unit. It is pointed out that there was enough time for the second

respondent to invite applications. Regarding Ext.R2(b) policy

regarding setting up COCO retail outlet, the counsel submits that the

objectives governing setting up COCOs are that such retail outlets are

located at strategic locations/sites to promote brand image of the

company or to provide modern, efficient, possible customer

convenience/service or such retail outlets are to be used as training

platform for officers of the company or they are to maintain standards

of facilities, customer offerings to match customer expectations or they

are intended to meet the emergency fuel requirements of the society

especially in major cities/state capitals. According to the petitioner,

none of the above situations exist in case of the ad hoc dealership

which is now granted to the third respondent and it is contended that

by expending public funds, the second respondent is favouring the

third respondent.

6. The counsel for the second respondent submits that the

location does not favour the starting of COCO unit since the expected

sale potential is below 250 kls. According to the counsel, since the W.P.(C)No.24767 of 2020 :-9-:

land is a lease land, the only other option available to the second

respondent was to utilise the land by starting an ad hoc retail outlet

and depending on the actual sale that the location is able to bring

about, the second respondent has to decide on the question of

divesting the site in line with the extant policy. It is submitted that the

petitioner, who has no locus standi to challenge the starting of an ad

hoc dealership in accordance with the policy of the second

respondent, cannot claim for a writ of mandamus as has been prayed

for in this writ petition. The second respondent does not owe any

statutory duty to the petitioner or to any other person in that matter

regarding policies which are purely commercial in nature. It is

submitted that there is no public law element involved and hence the

writ petition is liable to be dismissed.

7. I have considered the contentions advanced by the

counsel on either side in detail. The writ petition proceeds on the basis

that the award of retailership in favour of the 3 rd respondent is against

Ext.P2 guidelines. The 2nd respondent has clearly stated in Ext.P1

reply under the Right to Information Act that what is granted to the 3 rd W.P.(C)No.24767 of 2020 :-10-:

respondent is an ad hoc dealership. The 2nd respondent has produced

Ext.R2(a) which clearly shows that they have a clear policy regarding

ad hoc dealership and that the same is granted based on clear

guidelines. The petitioner has not challenged either the policy or the

guidelines regarding ad hoc dealership. As far as grant of ad hoc

dealership is concerned, the petitioner is not a person having any

locus standi, since such dealership is granted only to existing dealers

nearby and that too for a period of one year, which can be extended

for another year going by the policy. The contention that no notification

inviting applications was published is not available in the case of ad

hoc dealership. So also, the contention that the policy regarding ad

hoc dealership was introduced only in 2019 and that the land was

taken on lease in 2012, and that the respondent had sufficient time to

grant a regular dealership in the premises is also without any basis.

The petitioner who is an aspirant for a dealership, can only challenge

a grant of dealership if the 2 nd respondent has gone against their

policy or guidelines and favoured a person. In the case on hand, the

land in question was under lease with the 2 nd respondent from 2012 W.P.(C)No.24767 of 2020 :-11-:

and hence was a "A" site, which is capable of being utilised as retail

outlet on ad hoc dealership as per Ext.R2(a). The 3rd respondent was

selected on the basis of the guidelines issued for selection of ad hoc

dealers. The above selection process is not challenged in the writ

petition. The petitioner cannot lay a challenge to the process since he

is not an interested or affected person. It is also evident from

Ext.R2(a) that the 2nd respondent was having 185 retail outlets

operating on ad hoc basis as on 31.1.2019. As such it cannot be

contended that the purpose of grant of the dealership was to favour

the 3rd respondent. No grounds are made out warranting the

interference by this Court in exercise of its extraordinary jurisdiction

under Article 226 of the Constitution.

The writ petition fails and is dismissed

All pending interlocutory applications are closed.

Sd/-

T.R.RAVI, JUDGE ami/ W.P.(C)No.24767 of 2020 :-12-:

APPENDIX OF WP(C) 24767/2020

PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE INFORMATION RECEIVED FROM THE 2ND RESPONDENT EXHIBIT P2 THE TRUE COPY OF THE GUIDELINES APPROVED BY THE 1ST RESPONDENT FOR THE APPOINTMENT OF SERVICE PROVIDERS IN COCO UNIT EXHIBIT P3 A TRUE COPY OF THE GUIDELINE VIEWED BY THE 1ST RESPONDENT

RESPONDENTS' EXHIBITS

EXHIBIT R2(a) A TRUE COPY OF THE POLICY DATED 5.3.2019 ON OPERATION OF RETAIL OUTLET THROUGH AD HOC DEALERSHIP EXHIBIT R2(b) A TRUE COPY OF THE POLICY FOR SETTING UP OF COMPANY OWNED COMPANY OPERATED RETAIL OUTLETS DATED 6.1.2014 (WITHOUT ANNEXURES)