Kerala High Court
Indian Oil Corporatin vs Balaji Fuels on 23 June, 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
WEDNESDAY, THE 23RD DAY OF JUNE 2021 / 2ND ASHADHA, 1943
RP NO. 367 OF 2021
AGAINST THE JUDGMENT IN WA 165/2021 OF HIGH COURT OF KERALA,
ERNAKULAM
REVIEW PETITIONERS/APPELLANTS:
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 DEVISIONAL OFFICE, PANAMPILLY
NAGAR P.O., KOCHI - 682 036
BY ADVS.
THUSHARA JAMES
M.S.AMAL DHARSAN
RESPONDENT/RESPONDENT:
BALAJI FUELS, I.O.C DEALER, CHANDRA NAGAR, PALAKKAD -
678007
REPRESENTED BY ITS MANAGING PARTNER.
BY ADV.SMT.M.U.VIJAYALAKSHMI
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 23.06.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
R.P.Nos.367 & 369 of 2021 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 23RD DAY OF JUNE 2021 / 2ND ASHADHA, 1943
RP NO. 369 OF 2021
AGAINST THE JUDGMENT IN WA 163/2021 OF HIGH COURT OF KERALA,
ERNAKULAM
REVIEW PETITIONERS/APPELLANTS:
1 INDIAN OIL CORPORATION LTD.,
KERALA STATE OFFICE, PANAMPILLY NAGAR P.O., KOCHI-
682036, 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-682036.
BY ADVS.
THUSHARA JAMES
M.S.AMAL DHARSAN
RESPONDENTS/RESPONDENTS:
1 UNITED FUELS DEALERS,
IOC DEALER, EDAPPALLY, COCHIN-24, REPRESENTED BY ITS
PARTNER.
2 FORTUNE SERVICE STATION,
IOC DEALER, UDYAMPEROOR, NADAKKAVU P.O., ERNAKULAM,
REPRESENTED BY ITS MANAGING PARTNER.
3 SREE NARAYANA SALES AND SERVICES,
IOC DEALER, EDAPPALLY, COCHIN-24, REPRESENTED BY ITS
PARTNER.
4 CHERIA PATHROSE AND COMPANY,
IOC DEALER, KOLENCHERRY, ERNAKULAM-682311, REPRESENTED
BY ITS MANAGING PARTNER.
5 A.M.A. FUELS,
IOC DEALER, M.C. ROAD, MUVATTUPUZHA-682673, REPRESENTED
BY ITS MANAGING PARTNER.
6 KOTHAMANGALAM AUTO FUELS,
IOC DEALER, KOTHAMANGALAM, ERNAKULAM DISTRICT,
REPRESENTED BY ITS MANAGING PARTNER.
R.P.Nos.367 & 369 of 2021 3
7 AVARAN PETROLEUM,
IOC DEALER, KATTOOR ROAD, IRINJALAKUDA, THRISSUR-
680121, REPRESENTED BY ITS PROPRIETOR.
8 ANIDYA PETRO CAFE,
IOC DEALER, OLLUKKARA P.O., KALATHODE, THRISSUR-680655,
REPRESENTED BY ITS PROPRIETOR.
9 STAR AGENCY,
IOC DEALER, THRIPRAYAR, NATTIKA P.O., THRISSUR
DSITRICT, REPRESENTED BY ITS PROPRIETOR.
10 DURGA FUELS,
IOC DEALER, PERAMANGALAM, THRISSUR DISTRICT,
REPRESENTED BY ITS PROPRIETOR.
11 KHAYAM PETROLEUM,
IOC DEALER, PERUMPILAVU JUNCTION, THRISSUR-680519,
REPRESENTED BY ITS PROPRIETOR.
12 SREE SASTHA FULES,
IOC DEALER, KARUVATTOM, PATTAMBI ROAD, CHERPLASSERY,
PALAKKAD DISTRICT, REPRESENTED BY ITS PARTNER.
13 GURUDEV PETROPARK,
IOC DEALER, N.H. 47, PUDUKKAD, P.O. NANDIKKARA,
THRISSUR-680301, REPRESENTED BY ITS PROPRIETOR.
14 JYOTHI AGENCIES,
IOC DEALER, TUDA PLOT/ TUDA ROAD, THRISSUR DISTRICT,
REPRESENTED BY ITS PROPRIETOR.
15 R. BAHULEYAN AND SONS,
IOC DEALER, PALLURUTHY, COCHIN-682006, REPRESENTED BY
ITS MANAGING PARTNER.
BY ADV.SMT.M.U.VIJAYALAKSHMI
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON
23.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
R.P.Nos.367 & 369 of 2021 4
ORDER
Dated this the 23rd day of June,2021
Shaji P.Chaly,J
Above review petitions are filed by the appellants in W.A.Nos.163/2021 &
165/2021 challenging the common judgment in appeal dated 21.1.2021, by which
this Court dismissed the writ appeals and affirmed the order passed by the
learned Single Judge with the following findings:
"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."
2. Anyhow the review petitions are filed basically contending that the
eligibility for incentives under XTRACARE Incentive Scheme was dependent on
the conditions prescribed therein that these conditions were subjected to change
from time to time and the change was intimated to the dealers by way of
circulars; Circular dated 2.5.2012 made it clear that incentives could be paid only
to those dealers, who registered positive growth in sales, however, in the instant
cases, the dealers have not registered positive growth and therefore, they were
not eligible for continued incentives. But some amounts in the form of incentives
were wrongly credited to the dealer, which was sought to be recovered through
the recovery notices. Therefore, it is contended that there is an error apparent
on the face of the record since we went on to hold that the review petitioners
failed to produce any documents before the writ court to establish the case that
the dealers were put to notice with respect to the wrong credit of the incentives
to them, and that the review petitioners were prepared to produce sufficient
documents to establish that the dealers were given notice with respect to the
wrong credit and the failure on the part of the dealers to satisfy the
requirements of the XTRACARE Incentive Programme.
3. We have heard learned counsel for petitioners Dr.Thushara James on
the aspect of the maintainability of the review petitions. Learned counsel
advanced arguments on the basis of the contentions noted above. In our
considered opinion the issues so raised by the review petitioners were
considered by the learned Single Judge and after appreciating the findings
rendered by the learned Single Judge in the judgment in writ petition, we have
found that the writ court was right in dismissing the writ petition since there was
no material on record to show that the dealers were put on notice regarding
Exhibit P2 circular issued by the review petitioner Corporation in regard to the
change of policy. Even though the specific contentions advanced by the review
petitioners in the writ appeals were that they were put on notice with respect to
the circular in question in regard to the incentives, no documents were produced
along with the appeal so as to establish basically the said grounds raised. The
ground raised in the review petition would clearly show that the review
petitioners are seeking to re-consider the issue on the basis of some materials
available with the review petitioners.
4. It is quite significant to note that even though such a contention is
raised, the review petitioners have failed to produce any material along with the
review petitions even. It is well settled in law that a review can be entertained
by a court only, if there is an error apparent on the face of the record and the
error should be a patent one, which can be ascertained without a long drawn
process of reasoning. Merely because the review petitioners have stated that
records are available with them in regard to the intimation given to the dealers,
that cannot be a ground for review. If the review is entertained on the ground of
new documents, it would be nothing but a manifest injustice done to the writ
petitioners since the writ petitioners have contested the proceedings on the
basis of the materials available on record and the pleadings put forth by the
review petitioners. We do not think any failure of injustice caused while
dismissing the writ appeals on the basis of available materials on record. Merely
because the appellants have allegedly unearthed some documents, that can
never be a ground for review for the reason that in spite of sufficient
opportunities before the writ court as well as appellate court, the review
petitioners have not cared to produce any records to establish the case pleaded
in the counter affidavit. So also we are of the view that the contentions raised by
the review petitioners are not supported by any material on record and taking
into account all the above aspects, we have no hesitation to hold that the review
petitioners have not made out any case to grant the relief sought for in the
review petitions.
Upshot of the above discussion is that review petitions fail, accordingly
they are dismissed.
Sd/-
S.MANIKUMAR
CHIEF JUSTICE
Sd/-
SHAJI P.CHALY
smv JUDGE
