Kerala High Court

K. Ashraf vs The Bharat Petroleum Corporation ... on 5 January, 2022

                   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 5th day of January 2022 / 15th Pousha, 1943
                         WP(C) NO. 34439 OF 2019(D)
PETITIONERS:

  1. K. ASHRAF, AGED 44 YEARS, S/O. KOYAKUTTY, NATTAMPARAMBIL, ERUVA
     P.O., KAYAMKULAM.
  2. SABU, S/O. UMMERKUTTY, PUTHAYYATH VEEDU, , ARUVA P.O., KAYAMKULAM.
  3. VIJAYA MOHANAN B., S/O. BALAKRISHNA PILLI, KOMBINATHU HOUSE, , ERUVA
     P.O., KAYAMKULAM.
  4. RAJAN PILLAI, S/O. RAMACHANPILLI P., KOPPARAGIL, PARIGALA P.O.,
     KAYAMKULAM.
  5. BABU C., S/O. CHALLAPPAN K., ELAMSHERIL THARAYIL, PATHIYOOR P.O.,
     KAYAMKULAM.
  6. BIJU K., S/O. KRISHNAN, MUNDIYIL KIZHAKKATHIL, PATHIYOOR P.O.,
     KAYAMKULAM.
  7. ABDUL MANAF, S/O. POOKUNJU, KALEEKKAL THEKATHIL, KANAMPALLY BHAGOM,
     KAYAMKULAM.
  8. BASHEER KUTTY, S/O. SHAHUL HAMEED, ELAMPADATH CHERAVALLY P.O.,
     KAYAMKULAM.
  9. A. MURALEEDHARAN, S/O. ANANDAN, PUTHAN PURA KIZHAKATHIL, PERIGALA
     P.O.
 10. KUNJUMON, S/O. HYDAROOS KUNJU, MODHIRKUNNEL, CHERAVALLY P.O.,
     KAYAMKULAM.
 11. ABDUL SALAM, S/O. HAMEED KUTTY, KAPPAKASHERIL, KAYAMKULAM P.O.,
     KAYAMKULAM.
 12. ABDUL SHUKOOR, S/O. EBRAHIM KUTTY, KALAVALILL, PARIGALA P.O.,
     KAYAMKULAM.
 13. HUSSAIN, S/O. ABDUL RASAK, PLAMKOOTTIL THARAYIL, PERIGALA P.O.,
     KAYAMKULAM.
 14. NIZAMUDEEN, S/O. EBRAHIM KUTTY, VELITHARAYIL, KAYAMKULAM P.O.,
     KAYAMKULAM.
 15. ASHARAF T., S/O. THAGAL KUNJU, KALATHIL, CHERAVALLY MORUKUMOOD,
     KAYAMKULAM.

RESPONDENTS:

  1. THE BHARAT PETROLEUM CORPORATION LIMITED (BPCL), KOCHI LPG
     TERRITORY, BPCL,AMBALAMUGAL, ERNAKULAM, PIN-682302, REPRESENTED BY
     GENERAL MANAGER.
  2. THE ASSISTANT MANAGER (LPG), LPG-KOTTAYAM, TRIVANDRUM LPG TERRITORY,
     BHARAT PETROLEUM CORPORATION LIMITED, KOTTAYAM P.O., PIN-686001.
  3. THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO
     GOVERNMENT, DEPARTMENT OF FOOD AND CIVIL SUPPLIES, GOVERNMENT
     SECRETARIAT, THIRUVANANTHAURAM-695001.
  4. THE KERALA STATE CIVIL SUPPLIES CORPORATION LIMITED (SUPPLYCO),
      REPRESENTED BY ITS MANAGING DIRECTOR, CORPORATE OFFICE, PANAMPILLY
     NAGAR, ERNAKULAM-682020.
  5. THE MANAGER (SPECIAL BUSINESS), SUPPLYCO HEAD OFFICE,
     ERNAKULAM-682020.
  6. THE OFFICER IN CHARGE, SUPPLYCO LPG GAS OUTLET, OPPOSITE TO MSN
     COLLEGE, SHAN BUILDING, KAYAMKULAM P.O., ALAPPUZHA-690502.
  7. SRI. UNNIKRISHNA PILLAI, AGED 66 YEARS, S/O. KRISHNA PILLAI,
     PROPRIETOR, M/S. BPR BHARAT GAS, OACHIRA P.O., KOLLAM-690526.


     Writ petition (civil) praying inter alia that in the circumstances
stated in the affidavit filed along with the WP(C) the High Court be
pleased to stay the implementation of Ext.P5, pending disposal of the
above Writ petition.


     This petition again coming on for orders upon perusing the petition
and the affidavit filed in support of WP(C) and this Court's order dated
02.11.2020 and upon hearing the arguments of M/S J.OM PRAKASH,
SRI.T.G.SUNIL (PRANAVAM),C.X.ANTONY BENEDICT, T.G.MANOJ, T.G.SANTHOSH &
T.G.MAHESH Advocates for the petitioners and of SMT.MOLLY JACOB,STANDING
COUNSEL for the respondent 4, the Court passed the following:
          S. MANIKUMAR, C. J. & SHAJI P. CHALY, J.
        ======================================
            W. P. (C) Nos. 15424 of 2020, 26014, 27010
                        and 34439 of 2019
        ======================================
               Dated this the 5th day of January, 2022

                              ORDER

S. Manikumar, C. J.

On 02.11.2020, in W. P. (C) No. 15424 of 2020 and connected

cases, we passed the following order:-

"10. It is not in dispute that Transfer Petition (C) No.590 of 2020 is filed for transferring W.P.(C)No.27010 of 2019 to the file of the Hon'ble Supreme Court. For brevity, proceedings of the Hon'ble Supreme Court dated 1.6.2020 in Tr.P. (C) No.590 of 2020 and connected cases is extracted:

"Issue notice.

Tag with SLP (C) D No. 2960/2020."

11. Perusal of the common order made in W.P.(MD) Nos.24844 of 2019 and connected cases dated 25.11.2019 of the Hon'ble Madurai Bench of the Madras High Court shows that a learned single Judge of the Madras High Court has decided not to consider the appeal on merits and passed the following order:

W. P. (C) Nos. 15424 of 2020 and connected cases

"7. Admittedly, on 30.9.2019, the impugned circular has been quashed by the High Court of Bombay and it is non-est in the eye of law and the matter is subjudice before the Honourable Supreme Court. It is not in dispute the said circular was applied across the country. The validity of the circular was upheld when it was alive and operative. Now that the Division Bench of High Court of Bombay has quashed the circular. In that event, it cannot be construed to be operative within this region as per the Division Bench orders passed prior to 30.09.2019. Till the Honourable Supreme Court takes a decision as to the validity of the circular, which has been struck down, the circular cannot be operated upon. Considering the same, there shall be an order of interim injunction restraining the respondents from transferring the existing customers of the petitioner to new distributors."

12. In R.P.No.921 of 2018 dated 23.11.2018, a learned Single Judge observed thus:

"5. ................ I am of the opinion that the disposal of the writ petition on merits when such an application was pending before the Apex Court was not proper. Since the interim order had been granted on the ground that writ petitions were pending in other High Courts with interim orders being passed thereon, I am of the opinion that it is not proper on the part of this Court to have disposed of the writ petition on merits at a time when the transfer application was admittedly pending before the Apex Court. R.P.No.921/18 5 In the above view of the matter, the review petition is allowed. The judgment under review is recalled. The interim orders issued in the writ petition shall stand restored. Await the orders of the Apex Court in the transfer petitions. "

W. P. (C) Nos. 15424 of 2020 and connected cases

13. Though Mr. S. Nirmal, learned counsel for respondents 5 and 6 in W.P.(C)No.27010 of 2019, requested this court to take up the matter on merits, we are of the view that consistency has to be maintained. Though he has further submitted that W.P.(C)No.26014 of 2019 is a public interest litigation filed by the Confederation of Consumer Vigilance Centre and others and therefore, the same is not maintainable and thus persuaded us to take up the writ petitions for disposal, having regard to the admitted fact that Transfer Petition (C)No.590 of 2020 has already been filed to transfer W.P. (C)No.27010 of 2019 to the Honble Supreme Court and the same is pending, as observed by the learned single Judge, it is not appropriate for this court to take up the writ petitions for final disposal and it is desirable to await the decision of the Hon'ble Supreme Court on the transfer petition filed.

In such a view of the matter, we direct the Registry to post the writ petitions after three weeks. It is open to the parties to bring it to the notice of this court about the decision made in the transfer petition for further course of action."

2. On this day, when the matter came up for further hearing,

inviting the attention of this Court to judgment in W. A. No. 1785 of

2019 dated 03.12.2021, rendered in the matter of Vembanad Gas

Agencies v. Union of India and Others, regarding transfer of W. P. (C) Nos. 15424 of 2020 and connected cases

consumers from the distributor therein to the newly appointed

distributors, Mr. Nirmal S., learned counsel for respondents 5 and 6 in

W. P. (C) No. 27010 of 2019, submitted that transfer petitions to the

Hon'ble Apex Court have been filed only in W. P. (C) Nos. 26014 and

27010 of 2019, filed by the consumers, and that no transfer petition has

been filed in respect of writ petitions filed by the distributors.

3. He further reiterated that a case filed by the distributor has

been decided by a Hon'ble Division Bench, as stated supra.