Kerala High Court
Indian Oil Corporation Ltd vs Indian Oil Corporation Ltd on 21 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 21ST DAY OF JANUARY 2021 / 1ST MAGHA, 1942
WA.No.163 OF 2021
AGAINST THE JUDGMENT IN WP(C) 9883/2014(I) OF HIGH COURT OF KERALA
APPELLANTS/RESPONDENTS:
1 INDIAN OIL CORPORATION LTD.
KERALA STATE OFFICE, PANAMPILLY NAGAR P.O,
KOCHI 682 036,
REPRESENTED BY ITS DEPUTY GENERAL MANAGER
2 THE CHIEF DIVISIONAL RETAIL SALES MANAGER,
INDIAN OIL CORPORATION LTD., COCHIN DIVISIONAL
OFFICE, PANAMPILLY NAGAR P.O, KOCHI - 682 036
BY ADVS.
DR.THUSHARA JAMES
SRI.M.S.AMAL DHARSAN
RESPONDENTS/PETITIONERS:
1 UNITED FUELS DEALERS
I.O.C DEALER, EDAPPALLY, COCHIN -24,
REPRESENTED BY ITS PARTNER.
2 FORTUNE SERVICE STATION,
IOC DEALER, UDAYAMPEROOR, NADAKKAVU P.O, ERNAKULAM
REPRESENTED BY ITS MANAGING PARTNER
3 SREENARAYANA SALES AND SERVICES,
IOC DEALER, EDAPPALLY, COCHIN - 24, REPRESENTED BY
ITS PARTNER
4 CHERIA PATHROSE AND COMPANY,
IOC DEALER, KOLDENCHERY, ERNAKULAM - 682 311
REPRESENTED BY ITS MANAGING PARTNER
5 A M A FUELS,
IOC DELAER, M.C ROAD, MUVATTUPUZHA - 682 673
REPRESENTED BY ITS MANAGING PARTNER
WA.Nos.163 & 165 OF 2021 2
6 KOTHAMANGALAM AUTO FUELS,
IOC DEALER, KOTHAMANGALAM, ERNAKULAM DISTRICT,
REPRESENTED BY ITS MANAGING PARTNER.
7 AVARAN PETROLEUM
IOC DEALER, KATTOOR ROAD, IRINJALAKUDA,
THRISSUR - 680 121, REPRESENTED BY ITS PROPRIETOR
8 ANIDYA PETRO CAFE,
IOC DEALER, OLLUKKARA P.O, KALATHODE,
THRISSUR - 680 121, REPRESENTED BY ITS PROPRIETOR
9 STAR AGENCY
IOC DEALER, THRIPRAYAR, NATTIKA P.O,
THRISSUR DISTRICT, REPRESENTED BY ITS PROPRIETOR
10 DURGA FUELS,
IOC DEALER, PEERAMANGALAM, THRISSUR DISTRICT,
REPRESENTED BY ITS PROPRIETOR
11 KHAYAM PETROMEUM,
IOC DEALER, PERUMPILAVU JUNCTION,
THRISSUR - 680 519, REPRESENTED BY ITS PROPRIETOR
12 SREE SASTHA FUELS,
IOC DEALER, KAVUVATTOM, PATTAMBI ROAD,
CHERPLASSERY, PALAKKAD DISTRICT, REPRESENTED BY ITS
PARTNER
13 GURUDEV PETROPARK,
IOC DEALER, N.H 47, PUDUKKAD, P.O NANDIKKARA,
THRISSUR - 680 301, REPRESENTED BY ITS PROPRIETOR.
14 JYOTHI AGENCIES
IOC DEALDER,TUDA PLOT/TUDA ROAD,THRISSUR DISTRICT
REPRESENTED BY ITS PROPRIETOR.
15 I.R BAHULEYAN AND SONS
IOC DEALER,PALLURUTHY,COCHIN 682 006,REPRESENTED BY
ITS MANAGING PARTNER.
SMT. M.U.VIJAYALAKSHMI FOR RESPONDENTS
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
21.01.2021, ALONG WITH WA.165/2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WA.Nos.163 & 165 OF 2021 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 21ST DAY OF JANUARY 2021 / 1ST MAGHA, 1942
WA.No.165 OF 2021
AGAINST THE JUDGMENT IN WP(C) 10562/2014(U) OF HIGH COURT OF
KERALA
APPELLANTS/RESPONDENTS:
1 INDIAN OIL CORPORATION LTD.
KERALA STATE OFFICE, PANAMPILLY NAGAR P.O,
KOCHI 682 036, REPRESENTED BY ITS DEPUTY GENERAL
MANAGER.
2 THE CHIEF DIVISIONAL RETAIL SALES MANAGER,
INDIAN OIL CORPORATION LIMITED, COCHIN DIVISIONAL
OFFICE, PANAMPILLY NAGAR P.O., KOCHI - 682 036.
BY ADVS.
DR.THUSHARA JAMES
SRI.M.S.AMAL DHARSAN
RESPONDENT/PETITIONER:
BALAJI FUELS
I.O.C. DEALER, CHANDRA NAGAR, PALAKKAD 678 007,
REPRESENTER BY ITS MANAGING PARTNER.
MT. M.U.VIJAYALAKSHMI FOR RESPONDENT
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
21.01.2021, ALONG WITH WA.163/2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WA.Nos.163 & 165 OF 2021 4
JUDGMENT
SHAJI P.CHALY,J
These appeals are directed against the common judgment of the learned
Single Judge dated 12.5.2020 in W.P.(C) Nos.9883/2014 and 10562/2014, by
the respondents. Having been aggrieved by the following directions issued by
the learned Single Judge in the judgment, these writ appeals are filed:
"4. I have considered the contentions advanced. Though the
petitioners have raised contentions seeking payment of incentives in terms
of Ext.P1, the essential question which arises for consideration before this
Court at the present time is only with regard to the refund of the amounts
already paid to the petitioners. I am therefore called upon to consider only
the question of legality of the notices issued to the petitioners requiring
them to refund the amounts already drawn by them on the basis of the
XTRACARE scheme incentives in force. The petitioners have raised a specific
contention that they were not made aware of any change in the policy and
that the amounts had been released to them till the first quarter of 2013.
Though the respondents have placed counter affidavit on record pointing
out that there were modifications to the policy and specifically pleading that
the circular dated 2.5.2012 provides that incentives will not be granted in
case of the dealers registering a negative growth, there is no pleading to
the effect that the dealers were put on notice at any point of time that they
would not be entitled to the incentives unless they register positive growth.
On the contrary, the pleading in the counter affidavit itself is to the effect
that the amount of incentives eligible as per Ext.P1 had been granted to the
petitioners till the first quarter of 2013 but such payment was by mistake.
The contention raised by the respondents is to the effect that several
dealers have refunded the amounts and that the petitioners alone cannot
contend that they are not liable to refund the same. In view of the fact that
the respondents themselves had paid the amounts to the petitioners,
apparently, without noticing the change in policy brought about by Ext.R2(4)
and since it is not disputed that the petitioners have provided the extra
facilities required for claiming the incentives as per Ext.P1 and the
modifications brought about thereto, I am of the opinion that the
communications issued to the petitioners requiring them to refund the
amounts already paid by the respondents is completely untenable and
unsustainable. Even if it is the case of the respondents that the amounts
were not liable to be paid pursuant to Ext.R2(4), I am of the opinion that
since the amounts had already been disbursed to the petitioners and since
the incentives were paid against the maintenance of extra facilities by the
dealers, the contention of the respondents cannot be accepted.
5. The petitioners had approached this Court immediately after the
issuance of the notices and had obtained interim orders against recovery of
incentives paid pursuant to the notices. The fact that other dealers had not
challenged the notices and had paid the amounts cannot be a reason for
rejecting the claim raised by the petitioners. This is more so in view of the
fact that the specific case of the petitioners that they were not made aware
of the requirement in the amended policy has not been specifically
controverted by the respondents.
6. In the above view of the matter, I am of the opinion that the
prayers sought for in these writ petitions are liable to be allowed. The
impugned notices are quashed. However, the prayer for payment of further
amounts on the basis of Ext.P1 cannot be allowed since it is an admitted
fact that the policy has undergone a change and that incentives can be
granted only in terms of the policy as amended.
These writ petitions are ordered accordingly. "
2. The subject issue relates to unilateral stoppage of incentives given
to retail dealers of the Indian Oil Corporation Limited and also the claims for
refund of the incentives provided. According to the writ petitioners, the order in
question issued by the Indian Oil Corporation are in fragrant violation of the
provisions of fairness, equity and natural justice. It was also pointed out that
writ petitioners were providing additional facilities and services in their outlets
in accordance with the directions issued by the Indian Oil Corporation to the
retail dealers individually. It was also submitted that incentives towards the
compensation was certified and cleared from 2008 onwards based on the
inspection and verification carried out. Other legal contentions were also raised
to substantiate the contention that the action of the Corporation stopping the
incentives and re-calling the incentives already provided to the writ petitioners
are bad and illegal.
3. The learned Single Judge after taking into account the attendant facts
and circumstances projected by the writ petitioners and the contentions raised
in the counter affidavit filed by the Indian Oil Corporation, has arrived at the
finding that the Corporation itself paid the amounts without noticing the change
in policy brought about by the Corporation and also that it is not disputed that
the writ petitioners have provided the extra facilities required for claiming the
incentives as per Ext.P1 directions of the Corporation and the modifications
brought about thereto and therefore, the refund sought for was held to be bad.
It was also found that the contention advanced by the writ petitioners
that they were not made aware of the requirement in the amended policy
has not been specifically controverted by the respondents. Anyhow, the further
prayer sought for by the writ petitioners for payment of further amounts on
the basis of the offer extended by the Indian Oil Corporation cannot be
allowed since it was found that the policy had undergone a change and that
incentives can be granted only on the basis of amended policy. Appellants
relied upon Ext.R2(4) change of policy and submitted that the writ petitioners
were aware of the change of policy on and w.e.f. 2 nd May, 2012 and therefore,
the appellants were justified in re-calling the incentives on the basis of change
of policy. It was also pointed out that meetings of the dealers were frequently
called for and further that the subsequent change of policy was implemented
by the retail dealers and therefore, the retail dealers cannot be said to be
ignorant of the policy dated 2nd May, 2012.
4. We have heard learned counsel for appellants Sri.Thushara James
(Dr.), learned counsel for writ petitioners Sri.Brijesh Mohan and perused the
pleadings and materials on record.
5. The sole question to be considered is whether any manner of
interference is required in the judgment of the learned Single Judge ? In our
considered view, except from the contentions raised in the counter affidavit
filed by the appellants before the writ court that the retail dealers were aware
of Ext.R2(4) circular issued by the appellant Corporation in regard to the
change of policy, no documents were produced before the writ court to
substantiate the said contention. Mere submission made before the writ court
that periodical meetings of the retail dealers were conducted and therefore,
the dealers can be presumed to be aware of the change in policy is not a
legally sustainable contention. It was taking into account the said legal aspects
and factual circumstances available on record only, the learned Single Judge
has allowed the writ petition partly and declined the continuance of the
incentive facilities overlooking the amended policy.
6. On appreciation of the facts and law raised by the appellants, we do
not think, the appellants have made out a case of any illegality or unfairness in
exercise of the discretion by the learned Single Judge justifiable to be
interfered exercising the power of appeal conferred under section 5 of the
Kerala High Court Act, 1958.
Needless to say, writ appeals fail, accordingly they are dismissed.
Sd/-
S.MANIKUMAR
CHIEF JUSTICE
Sd/-
SHAJI P.CHALY
smv JUDGE
