Kerala High Court
Kasim P.H vs Union Of India on 15 September, 2022
W.P.(C) No. 26014/2019 :1:
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 15TH DAY OF SEPTEMBER 2022 / 24TH BHADRA, 1944
WP(C) NO. 26014 OF 2019
PETITIONER/S:
1 CONFEDERATION OF CONSUMER VIGILANCE CENTRE
SREEKOVIL, KODUNGANOOR P.O., THIRUVANANTHAPURAM,
REPRESENTED BY ITS GENERAL SECRETARY, AYYAPPAN NAIR.
2 SASIDHARAN.S.,
AGED 69 YEARS
S/O.SIVASANKARAN SANTHI BAHVAN, MARTHANDANKARA,
EZHAMKULAM P.O., THINKALKARIKAM, EROOR, KOLLAM, PIN-
691 312.
3 MILAD SHERIF,
AGED 43 YEARS
S/O.NAINAN MOHAMMED, T.C.52/236, MULLUVILAKETHU
VEEDU, PAZHYAKARAKKAMANDAPAM, NEMAM P.O.,
THIRUVANANTHAPURAM, PIN-695 020.
BY ADVS.
BLAZE K.JOSE
SMT.NIVEA LIZ PETER FERNANDEZ
SMT.SHEENAMOL VARGHESE
RESPONDENT/S:
1 BHARAT PETROLEUM CORPORATION LTD.
KOCHI LPG TERRITORY, B.P.C.L., AMBALAMUGAL, ERNAKULAM,
PIN-682 302, REPRESENTED BY GENERAL MANAGER.
2 HINDUSTAN PETROLEUM CORPORATION,
KOCHI L.P.G. REGIONAL OFFICE, SEAPORT-AIRPORT ROAD,
IRUMPANAM, ERNAKULAM, PIN-682 309, REPRESENTED BY
W.P.(C) No. 26014/2019 :2:
GENERAL MANGER.
3 INDIAN OIL CORPORATION,
KERALA STATE OFFICE, INDIAN OIL CORPORATION LTD.,
PANAMPILLY NAGAR, ERNAKULAM, PIN-682 036,
REPRESENTED BY THE GENERAL MANAGER(LPG).
4 UNION OF INDIA,
REPRESENTED BY SECRETARY, MINISTRY OF PETROLEUM AND
NATURAL GAS, SHASTRI BHAVAN, NEW DELHI-110 001.
5 ADDL. R5 IMPLEADED:
ELDHO PHILIP,
AGED 31 YEARS
S/O.PHILIP, 480/5, NECHUR, MANEED, ERNAKULAM-686 664,
SECRETARY, ASSOCIATION OF LPG DISTRIBUTORS IN KERALA,
REG. NO.EKM/TC/778/2019,(ALDK) 480, WARD NO.5,
MANEED, ERNAKULAM.
(ADDL. R5 IS IMPLEADED AS PER ORDER DATED 27/01/2020
IN IA.3/2020 IN WPC.)
BY ADVS.
M. GOPIKRISHNAN NAMBIAR
Mr.B.PRAMOD, CGC
VEENA HARI
SRI.K.JOHN MATHAI
ASSISTANT SOLICITOR GENERAL
SRI.JOSON MANAVALAN
SRI.KURYAN THOMAS
SRI.PAULOSE C. ABRAHAM
NIRMAL.S
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
22.08.2022, ALONG WITH WP(C) NOS. 27010/2019 & 22449/2022,
THE COURT ON 15.09.2022 DELIVERED THE FOLLOWING:
W.P.(C) No. 26014/2019 :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 15TH DAY OF SEPTEMBER 2022 / 24TH BHADRA, 1944
WP(C) NO. 27010 OF 2019
PETITIONER/S:
1 THE KASARAGOD DISTRICT L.PG. CONSUMERS FEDERATION,
REPRESENTED BY ITS PRESIDENT SHRI. PADMANABHAN K.,
OPPOSITE KRISHI BHAVAN, KUTTAMATH NAGAR,
CHERUVATHUR (P.O), KASARAGOD DISTRICT, PIN-671 313.
2 LAKSHMIKANT K.L.
AGED 47 YEARS
S/O. LAKSHMANAN, RESIDING AT LAXMAN COMPOUND,
NELLIKUNNU, KASARAGOD, PIN-671 121.
BY ADVS.
JAWAHAR JOSE
SMT.CISSY MATHEWS
SRI.SARUN RAJAN
SRI.K.JAJU BABU (SR.)
RESPONDENT/S:
1 THE UNION OF INDIA,
REPRESENTED BY ITS SECRETARY, MINISTRY OF PETROLEUM
AND NATURAM GAS, A-WING, SHASTRI RAJENDRA PRASAD
ROAD, NEW DELHI, PIN-110 001.
2 THE INDIAN OIL CORPORATION
REPRESENTED BY ITS CHAIRMAN, 3079/3, JB TITO MARG,
SADIQ NAGAR, NEW DELHI, PIN-110 049.
3 THE BHARAT PETROLEUM CORPORATION LIMITED
REPRESENTED BY ITS CHAIRMAN, BHARATH BHAVAN, 4 AND 6
CURRIMBHOY ROAD, BALLARD ESTATE, MUMBAI,
MAHARASHTRA, PIN-400 001.
4 THE HINDUSTAN PETROLEUM CORPORATION LIMITED,
REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR,
W.P.(C) No. 26014/2019 :4:
PETROLEUM HOUSE, 17, JAMSHEDJI TATA ROAD, MUMBAI,
MAHARASHTRA, PIN-400 020.
5 ADDL R5, R6 & R7 IMPLEADED:
ELDHO PHILIP
AGED 31 YEARS
S/O.PHILP, 480/5, NECHUR, MANEED, ERNAKULAM-686 664,
SECRETARY, ASSOCIATION OF LPG DISTRIBUTORS IN KERALA,
REG NO.EKM/TC/778/2019, (ALDIC) 480, WARD NO. 5,
MANEED , ERNAKULAM
(ADDL R5 IMPLEADED AS PER ORDER DATED 27-01-20 IN IA
NO. 1/20)
6 KOLLAMPARAMBIL AHAMED ABDUL MAJEED
AGED 72 YEARS
S/O.AHAMED, KOLLAMPARAMBIL HOUSE , ARAKAKADAVU
ROAD, VENNALA P.O, COCHIN- 68202, REPRESENTED BY
POWER OF ATTORNEY HOLDER OF SHANI KOLLAMPARAMBIL
ABDUL MAJEED
(ADDL.R6. IS IMPLEADED AS PER ORDER DATED 29-09-2020 IN
IA NO.2/2020.)
7 ADDL. R7. M/S.AYSHA INDANE GRAMIN VITRAK,
GROUND FLOOR, 290/16B, VAZHAPPILLY, MALAVANA,
PUTHENVELIKKARA, ERNAKULAM-683 594, FIRM
REPRESENTED BY ITS MANAGING PARTNER AJMAL K.H., AGED
43 YEARS, S/O. HASSAN, RESIDING KALLEPURATH HOUSE,
KANGARAPADY JUNCTION, THRIKKARAKARA NORTH,
VADACODE P.O., ERNAKULAM-682 021.
(ADDITIONAL R7 IS IMPLEADED AS PER ORDER DATED
07/10/2020 IN IA 3/2020)
BY ADVS.
SHRI.P.VIJAYAKUMAR, ASG OF INDIA
SRI.M.GOPIKRISHNAN NAMBIAR
NIRMAL. S
T.B.HOOD
C.R.REKHESH SHARMA
SRI.K.JOHN MATHAI
SMT.M.ISHA
SMT.VEENA HARI
SRI.JOSON MANAVALAN
W.P.(C) No. 26014/2019 :5:
SRI.KURYAN THOMAS
SRI.PAULOSE C. ABRAHAM
S.MANU
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
22.08.2022, ALONG WITH WP(C) NOS. 26014/2019 & 22449/2022,
THE COURT ON 15.09.2022 DELIVERED THE FOLLOWING:
W.P.(C) No. 26014/2019 :6:
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 15TH DAY OF SEPTEMBER 2022 / 24TH BHADRA, 1944
WP(C) NO. 22449 OF 2022
PETITIONER/S:
KASIM P.H
AGED 77 YEARS
S/O HAMEED,
PUTHANPURACKAL, KARTHIKAPURAM P.O,
ALAKKODE VIA, KANNUR DISTRICT, PIN 670 571.
CONVENOR, HILL AREA LPG CONSUMERS SAMITHI,
KARTHIKAPURAM P.O, ALAKKODE VIA, KANNUR DISTRICT, PIN
670 571, PIN - 670 571.
BY ADV MANAS P HAMEED
RESPONDENT/S:
1 UNION OF INDIA
MINISTRY OF PETROLEUM AND NATURAL GAS,
REPRESENTED BY ITS SECRETARY,
SHASTRI BHAWAN, NEW DELHI, PIN - 110 001.
2 INDIAN OIL CORPORATION
REPRESENTED BY ITS CHAIRMAN, 3079/3, JB TITO MARG,
SADIQ NAGAR, NEW DELHI, PIN - 110 049.
3 BHARAT PETROLEUM CORPORATION LIMITED
REPRESENTED BY ITS CHAIRMAN, BHARATH BHAVAN,
4&C CURRIMBHOY ROAD, BALLARD ESTATE, MUMBAI,
MAHARASHTRA, PIN - 400 001.
4 THE HINDUSTAN PETROLEUM CORPORATION LIMITED,
REPRESENTED BY ITS CHAIRMAN, PETROLEUM HOUSE,
17, JAMSHEDJI TATA ROAD, MUMBAI,
MAHARASTHRA, PIN - 400 020.
BY ADVS.
W.P.(C) No. 26014/2019 :7:
M.GOPIKRISHNAN NAMBIAR
ADARSH KUMAR
K.JOHN MATHAI
JOSON MANAVALAN
KURYAN THOMAS
R2 TO R4 BY SRI. PAULOSE C. ABRAHAM
RAJA KANNAN
K.M.ANEESH
K.SANTHOSH KUMAR (KALIYANAM)
SHASHANK DEVAN
R2 TO R4 BY SRI. E K NANDAKUMAR (SR.)-
R1 by SRI. S MANU, ASGI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
22.08.2022, ALONG WITH WP(C) NOS. 26014 & 27010 OF 2019, THE
COURT ON 15.09.2022 DELIVERED THE FOLLOWING:
W.P.(C) No. 26014/2019 :8:
S. MANIKUMAR, CJ & SHAJI P. CHALY, J.
---------------------------------------------------------
W.P.(C) Nos. 26014 & 27010 of 2019
& 22449 of 2022
---------------------------------------------------------
Dated this the 15th day of September, 2022.
JUDGMENT
SHAJI P. CHALY, J.
The captioned writ petitions are Public Interest litigations
filed, in respect of transfer of LPG connections from one
distributor/agency to another without informing the
customers/consumers, and challenging the orders thereto; and
also a rival direction in respect of the implementation of the
orders issued, and transfer of the LPG connections to the
nearest distributor of the consumers at the earliest.
Fundamental issues raised in the writ petitions, and the
documents relied upon being a typical, narration of facts
separately is not required.
2. The issue with respect to the transfer of consumers
from one distributor to another was considered by this Court in
several writ petitions filed by the distributors and had held that
the Oil Marketing Corporations have got power and authority to
port the consumers from one distributor to another.
3. W.P.(C) Nos. 26014 and 27010 of 2019 are filed by two
organizations said to be constituted to protect the interest of
the gas consumers; whereas, W.P.(C) No. 22449 of 2022 is
filed by an individual consumer seeking transfer of LPG
connections to the nearest distributor of consumers by
implementing the Unified Guidelines for Selection of LPG
Distributor 2016 and Ext. P9 order of the Government of India,
Ministry of Petroleum and Natural Gas, dated 23.06.2016 and
16.02.2018 respectively, whereby appropriate directions were
issued to the Oil Marketing Corporations to close down the
existing extension counters in various places, including the
State of Kerala by 31.03.2018 and transfer the existing
customers to the nearby distributor through intra company or
inter company, as the case may be.
4. The paramount contention advanced by the
Consumers' Associations against the guidelines and the
Government Order is that the respondents have no authority to
transfer the LPG connections of consumers without the
knowledge of the consumers as per the convenience of the
respondents. It is also submitted that the right to transfer a
consumer from one distributor pertaining to LPG connection is
left with the consumer and the Public Sector Oil Company has
no right regarding the same. However, contrary to the right of
the consumers, the respondents have started a practice of
transferring LPG connections in different parts of the State
from one distributor to another without any consent or
authorisation of the consumers and the said unauthorised act
of the respondents have put the LPG consumers into a state of
hardship and various inconveniences, is the contention.
5. That apart, it is submitted that due to the improper act
of the respondents, the consumers are to suffer irregular
services from the distributor and they are at far off places from
their houses. According to the Consumers' Associations,
consequent to the porting of the consumers, abnormal delay
has occurred in respect of refilling the cylinders and therefore,
the delay in supplying the gas cylinder is a chronic problem for
consumers. It is also pointed out that even though affected
consumers have made several requests to the respondents
informing hardships faced by them, the respondents have not
initiated any action to resolve their issue.
6. It is also submitted that the action of the respondents
are arbitrary and illegal and thus, violative of Article 14 of the
Constitution of India. That apart, in W.P.(C) No. 27010 of 2019,
the petitioners therein have raised a contention that the right
of the consumers to continue or not to continue with a dealer is
crystalized with the policy decision of the Union Government,
as is evident from Ext. P3 dealing with the inter company
portability and Ext. P4 LPG Portability Options dated
26.10.2015 and 24.06.2019 respectively.
7. In Ext. P3, it is stated that in order to have competition
among distributors in the interest of customer service, it is felt
that a portability system enabling customers to migrate
between cluster of distributors, both intra and inter company,
to be put in place; that in such a scenario, a customer, not
satisfied with services of his parent distributor, can migrate to
his chosen distributor within the cluster for better service; and
that would result in better customer satisfaction and incentive
for distributors for giving better service and thereby, the
distributor, who would be losing customers, also would always
look forward to woo the existing customers with prompt
service. Paragraph 9 thereto specifies that the proactive
electronic tracking of the portability request with escalation
matrix and its closure is placed to ensure that a consumer does
not have any difficulty in moving to the distributor of his
choice.
8. Ext. P4 LPG Portability Options produced in W.P.(C) No.
27010 of 2019, reads thus:
"Ministry of Petroleum & Natural Gas
LPG Portability Options
Posted On: 24 JUN 2019 3:22PM by PIB Delhi
Portability option for transfer of LPG connection was
launched across the country in 2013. Subsequently,
the process of online transfer of connection within
same market was made fully automatic for the
transfers within the same Oil Marketing Company
(OMC).
Through this initiative, the consumer is empowered to
choose his/her destination distributor online from his
registered login without the intervention of his parent
distributor. In this process event the Transfer
Subscription Voucher (TSV) is delivered at customer
premises by the destination distributor and it does
away for the consumer to physically approach both the
distributors with a transfer request. The process of
transfer of connection also entails email information to
customer on each stage of transfer of connection.
In case of Inter Company Connection Transfer, both
parent and destination distributor get advance
intimation about consumer's transfer request with
tracking options for customers. However, the Customer
needs to visit the parent distributorship for
surrendering of LPG equipments as accounting of
equipment and security deposit is involved.
OMCs have reported that since the launch of
Scheme till 18.6.2019, more than 4.2 lakh consumers
have used this option for getting their connection
transferred to their preferred/required distributor
online under the portability scheme. OMCs have
reported that the complaints pertaining to portability
scheme are resolved immediately and there are Nil
established cases of complaints on portability. OMCs
have reported that they have received suggestions on
Portability scheme and in March, 2016, the process of
online transfer of connection within same market was
made fully automatic for the transfers within the OMC
thereby doing away with the physical requirement of
approaching the distributor with a transfer request. The
portability scheme is now available across the country.
This information was given by the Union Minister
for Petroleum and Natural Gas Shri Dharmendra
Pradhan in a written reply in the Lok Sabha today."
9. Therefore, the sum and substance of the contention
advanced by the petitioners is that the rights crystalised to a
consumer cannot be taken away by the orders of the
Government or the Oil Marketing Corporations, and if at all the
said right can be restricted or taken away, it can only be by
legislative intervention. In the absence of the same, the
forcible migration of a consumer without their consent by the
Oil Marketing Corporations, is illegal and arbitrary.
10. Insofar as W.P.(C) No. 22449 of 2022 is concerned,
the petitioner therein submits that the Government as well as
the Oil Marketing Corporations are liable to remove the
difficulties faced by the consumers with respect to the access
to LPG and that the consumers, especially from hill area, are
unable to reach out their distributors which are functioning far
away from their houses. It is also pointed out that the cylinders
are not distributed directly to the houses of the consumers, but
are stored at some shops of the area and therefore, the
consumers are forced to make additional payment to the shop
owners for receiving the cylinders.
11. It is further pointed out that the distributors are
charging unauthorised transportation fee also and therefore,
the Oil Marketing Corporations are liable to ensure that the
guidelines for the purpose and the Government Order referred
to in the said writ petition, namely Exts.P8 and P9, are
effectively implemented in the interest of the public.
12. Oil Marketing Corporations have filed counter
affidavits basically contending that the right of the Public
Sector Oil Marketing Companies to transfer the consumers of
their LPG cylinders from one distributorship to another, has
been upheld by various courts of law, including a Division
Bench of this Court in All India LPG Distributors Federation and
Ors. v. Union of India and Ors. [2003 (2) KLJ 451] and recently
in Vembanad Gas Agencies v. Union of India and Ors .
[judgment dated 03.12.2021 in W.A. No. 1785 of 2019]. That
apart, it is pointed out that, in clause 2.(b)(ii) of Ext. R4(a)LPG
Dealership Agreement produced along with the counter in W.P.
(C) No. 27010 of 2019, and all other similar agreements the
Corporation reserves the right to appoint one or more
additional distributors within the territory of the existing
distributor.
13. It is further submitted that as per the said clause, the
Corporation is entitled to reduce, restrict, modify or alter the
area of distribution of the existing distributors. The sum and
substance of the contention of the Oil Marketing Corporations
is that the reduction in the area of operation would
automatically result in reducing the number of consumers
registered with the dealer. It is also pointed out that the
appointment of new dealers would automatically result in the
reduction of the number of customers.
14. So also, it is submitted that no territory can be
assigned without reference to the consumers and therefore,
there can be no consumer in isolation without reference to the
territory or area. Apart from the same, it is submitted that, a
consumer's subscription is based on and pre-supposes the
location where the product is to be delivered, and he cannot
have an existence divorced from the area or environment
within which he uses the LPG. Further, it is submitted that
adequate safeguards have been provided while undertaking the
transfer for protecting the interest of customers. Yet another
contention advanced is that W.P.(C) No. 27010 of 2019 filed by
the Consumers' Associations is at the behest of some of the
LPG distributors, whose right to challenge such a transfer, has
been negated by this Court, which can be observed from the
date of registration of the society ie., during August, 2019 and
the writ petition was filed in September, 2019.
15. It is also contended that LPG is a controlled item, to
mean that it is an essential commodity under the provisions of
the Essential Commodity Act, 1955 and the entire production,
distribution and sale of LPG is controlled by various orders
passed under the provisions of Section 3 of the Act, 1955 and
multiple policies formulated by the Government of India to
ensure that the essential/controlled commodity is distributed
in a fair, reasonable and equitable fashion. Therefore, it is
submitted that in line with the responsibility to cater to the
needs of a consumer, it is the paramount obligation of the Oil
Marketing Corporation to ensure that LPG is distributed in a
fair, reasonable and equitable manner and further that the
distribution is not affected in any manner.
16. It is also stated that the intention of the policy of
appointment of new distributorship and transfer of customers
from existing distributors is done to improve the services of
supplying LPG cylinders to the public, and is done only in public
interest. It is also the case of the Oil Marketing Corporations
that even though cylinder home delivery charges are part of
the commission paid by the Oil Companies, additional delivery
charges as approved by the District Collectors are recoverable
by the distributors from the customers, if the residence of the
customer is more than 5 kms. away from the showroom of the
distributor. Therefore, according to the Oil Corporations, when
customers are transferred to the new distributorships nearer to
the customers' residences, the same would result in reducing
cost for procuring the LPG cylinders for those customers.
17. That apart, it is submitted that even if a consumer is
transferred from one distributorship to another, the customers
cannot be said to have any grievance against the same as they
are, as such, unaffected by such transfer due to the door to
door delivery of the LPG cylinders. Other contentions are also
raised and he seeks dismissal of the writ petitions filed by the
Consumer Associations challenging the guidelines and the
orders passed by the Government of India.
18. In the writ petition filed by the Consumers'
Association, LPG Distributors' Association in Kerala have filed
an impleading petition and arguments were advanced
supporting the contentions raised by the Oil Marketing
Corporations. The petitioners have filed a reply affidavit
reiterating the stand adopted in the writ petition.
19. We have heard Sri. Jawahar Jose, Sri. Blaze K. Jose
and Sri. Manas P. Hameed for the writ petitioners and the
learned Senior Advocate Sri. E. K. Nandakumar and Sri. Poulose
C. Abraham for the Oil Marketing Corporations, learned
Assistant Solicitor General of India, Sri. S. Manu for the Union
of India, Sri. Nirmal S for the Distributors' Association, Sri. T. B.
Hood for one of the respondents supporting the contentions
advanced by the Oil Marketing Corporations and Sri Adarsh for
the distributor in the impleading application.
20. The basic contentions advanced by the rival parties
are largely dependent upon the Unified Guidelines for
Selection of LPG Distributorships issued by the Ministry of
Petroleum & Natural Gas, Government of India in June, 2016.
Clause 1.12.therein defines 200 'point Roster' to mean a set of
serial numbers from 1 to 200, against which each serial
number reservation category is allocated such that when 200
numbers of Distributors are planned in the Roster, the
percentage reservation of each category is achieved. It further
specifies that the principle will not apply for such locations
which are considered beyond marketing plan or locations under
Durgam Kshetriya Vitrak where distributorships are to be
granted based on nomination basis to Government run Co-
operative Societies/ Organizations. Clause 1.13 "dealing with
an area of operation of LPG distributorship" is defined to mean
an area consisting of Towns/villages in which the respective
LPG distributor will market LPG cylinders as determined by the
concerned OMC.
21. Clause 2 deals with 'identification of locations'.
Clause 2.1 specifies that locations for setting up of LPG
distributorship and it will be identified based on available refill
sale potential that can sustain economically viable operation of
LPG distributorship; and it will also be based on data mining
involving features of a particular geographical area and its
demographic features. Clause 2.2 prescribes that the refill sale
potential will be based on several factors, including population,
population growth rate, economic prosperity of the location
and the distance from the existing nearest distributor. As per
clause 2.3, in selecting locations, inputs will also be taken from
State Government/Local Administration/Public
Representatives. Further, as per clause 2.4, to the extent
possible, new LPG Distributorship will be planned in the virgin
location either of an existing market or virgin market as
specified in the guidelines.
22. "Virgin Market" is defined under clause 1.11 to mean
a town or a village where no LPG Distributorship is located and
not serviced by any LPG distributor of OMC. Cluster of villages
includes villages considered for working out refill sale potential
for considering the feasibility for setting up of a Gramin Vitrak
or Durgam Kshetriya Vitrak.
23. Clause 3 thereto deals with rostering of locations as
per 200 point roster. Among others, it is specified therein that
there will be three '200' point rosters maintained on an All
India basis at the Head Office.That apart, clause 21 of the
Guidelines specifies that the selection guidelines will be
applicable for the advertisements released for the selection of
LPG Distributors from the date of notification of the Guidelines.
24. It is important to note that the order issued by the
Government of India, Ministry of Petroleum & Natural Gas, New
Delhi, on 16.02.2018, which is produced as Ext. P9 in W.P.(C)
No. 22449 of 2022, clearly specifies that the extension
counters which are operating in various States as well as Union
Territories, including Kerala, shall be closed by 31.03.2018 and
the existing customers be transferred to the nearby distributor
through intra company or inter-company, as the case may be.
This is clearly indicative of a fact that the existing distributors
were managing the supply and serving the customers by
devising a mechanism of starting extension counters and
without which they were unable to manage supply and service.
25. Above all, one of the agreements produced by the Oil
Marketing Corporation executed by and between the parties,
along with its counter affidavit, makes it clear that, without any
reference to or consent of the dealer, the Oil marketing
Corporation is at liberty to appoint one or more additional
dealers in the same territory as referred to in Clause 1(a) and
such additional dealer or dealers shall be entitled to sell gas in
the same territory without any objection from the dealer and
the dealer shall not be entitled to claim any overriding
remuneration, commission or allowances for the purpose.
26. In fact, this question was considered by a Division
Bench of this Court in All India LPG Distributors Federation
(supra), in which it is held that transfer of LPG connections
from one distributor to another on the basis of viability norms,
is not arbitrary or illegal. This question was also considered in
the appeal filed by M/S Vembanad Gas Agencies (supra) from
the distributors' point of view and held that the Oil Marketing
Corporations and the Government of India are vested with
powers to transfer the LPG connections from the existing
distributors to the new distributors appointed by the Oil
Marketing Corporations. The same was the decision rendered
by us in K. Ashraf and others v. Bharat Petroleum Corporation
Limited and others [judgment dated 14.02.2022 in W.P.(C) No.
34439 of 2019 and batch]
27. To put it short, the sole question to be considered is
whether there is any illegality or arbitrariness in transferring a
consumer from one distributor to another appointed by the Oil
Marketing Corporations. In our considered opinion, the
guidelines and the agreement executed by and between the Oil
Marketing Corporations and the distributors would show that
the consumers are under the direct supervision and control of
the Oil Marketing Corporations and the consumer cannot turn
around and say that they are entitled to continue with the
existing distributors. The conditions contained under the
guidelines would make it clear that the entire procedure, for
appointment of distributors and the supplies to be made to the
consumers are all streamlined and structured in a very
emphatic and disciplined manner so as to avoid any complex
situations in the business dealings by and between the parties.
28. The guidelines and policies are introduced by the
Government of India and the Oil Marketing Corporations to
render better services to the consumers of LPG connections,
taking into account the distance between the consumer and the
distributor, the feasibility and viability of the supply, efficient
services and cost effective methods in order to protect the
interest of the consumers. When the distribution of the LPG
cylinders is regulated and controlled under the Essential
Commodity Act, 1955, and the Oil Marketing Corporations are
controlling the appointment of the distributors and the supply
of LPG Gas cylinders; it is for the Oil Marketing Corporations to
take into account the necessary and required viable aspects for
effectively and safely supplying gas cylinders and rendering
services to the consumers.
29. Moreover, no right is vested with the consumer in
objecting to the porting done by the Oil Marketing
Corporations/Government of India under any guidelines issued
with respect to the LPG portability. The object of the Company
portability Guidelines discussed above granting liberty to the
consumer is to protect the interest of the consumer by the
consumer themselves, which means that if a consumer wants
to migrate, they are entitled to do so; but that will not stand in
the way of the Oil Marketing Corporations implementing the
guidelines/orders issued by the Government of India by
appointing new distributors for better service to the
consumers, and to port the LPG connections to new distributors
or existing distributors to attain the required results envisioned
by the government.
30. Moreover, merely because such a provision is made in
the Inter-company Portability Guidelines, that cannot be, in
any manner, interpreted as a right conferred on the consumer
to object to the porting done by the Oil Marketing Companies,
when new distributors are appointed. To put it otherwise, the
portability principles are introduced by the Government of
India through the Oil Marketing Corporations with the sole
object of protecting the interest of the consumers and thus,
protecting the public interest by providing cost effectiveness,
easy access, services, and safety, in the matter of supply of
LPG cylinders from door to door. Moreover, LPG cylinders are
to be supplied by the distributors at the door steps of the
consumers. Therefore, the consumer is not at all affected, in
any manner, in the matter of supply of the LPG cylinders.
Above all, these are all the policy decisions taken by the
Government of India and the Oil Marketing Corporations with
the avowed object of rendering principled and maximum
services bearing in mind the convenience of the people, and
therefore, interference with such policies by courts exercising
the powers conferred under Article 226 of the Constitution of
India, is also limited in nature. Thus to say, that can be done,
only if any arbitrariness or illegality, or whimsicality is detected
in the process of drawing up and implementing the policy.
31. After due deliberation of the facts and the law as
discussed above, we are of the considered opinion that there is
no illegality or arbitrariness, or other legal infirmities in the
action of the Government of India and the Oil Marketing
Corporations porting the consumers from one distributor to
another. In our view, such a course of action adopted by the
Government and the Oil Marketing Corporations would only
enure to the benefit of the consumers, and by no stretch of
imagination, it can be visualised and presumed that the shifting
of consumer from one distributor to another, would, in any
manner, prejudice the consumer.
32. Taking into account all the above aspects, we have no
hesitation in saying that the writ petitions filed by the
Consumers' Association against the transfer of the consumers
from one distributor to another cannot be sustained at all, and
they are not entitled to get any reliefs as are sought for.
Therefore, the said writ petitions have no legal sustenance.
Insofar as W.P.(C) No. 22449 of 2022 is concerned, in view of
the findings rendered by us above in the writ petitions filed by
the Consumers' Associations, we are of the view that the
Guidelines and the orders issued by the Government of India
referred to therein as Exts.P8 and P9 are to be implemented in
its letter and spirit at the earliest possible time.
33. We are also of the view that the findings rendered by
the Division Benches of this Court in All Indian Distribution
Federation (supra), Vembanad Gas Agencies (supra) and K.
Ashraf and others v. Bharat Petroleum Corporation Limited
would squarely apply to the facts and circumstances of these
cases in all respects, except the fact that therein the question
considered was with respect to the transfer of consumers from
the distributor from the distributor's point of view.
34. The Managing Partner of Vembanad Gas Agencies has
filed I.A. No. 1 of 2022 in W.P.(C) No. 22449 of 2022, seeking
to get itself impleaded as additional respondent No.5, basically
stating that in the earlier writ petition, the entire aspects and
law relating to the porting was not brought to the notice of the
court.
35. However, we are of the considered opinion that the
transfer of a consumer from one distributor and the
consequences arising therefrom to the distributor is already
settled by this Court in the judgments referred to above and
therefore, it has no locus standi or any right to get itself
impleaded in the writ petition in question,opposing the reliefs
sought for by a consumer to implement the guidelines and the
orders issued by the Government of India and the Oil Marketing
Corporations. Therefore, I.A. No. 1 of 2022 seeking
impleadment will stand dismissed.
36. To sum up, W.P.(C) Nos. 26014 of 2019 and 27010 of
2019 are dismissed and writ petition 22449 of 2022 is disposed
of directing the Oil Marketing Corporations to implement
Exts.P8 and P9 guidelines and orders issued by the Government
of India dated 23.06.2016 and 16.02.2018 respectively, at the
earliest possible, if it is not already done.
All other pending IAs would stand closed accordingly.
sd/-
S. MANIKUMAR,
CHIEF JUSTICE.
sd/-
SHAJI P. CHALY,
JUDGE.
Rv
APPENDIX OF WP(C) 26014/2019
PETITIONERS' EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE COMPLAINT RECEIVED FROM
THE AFFECTED L.P.G. CONNECTION HOLDERS OF
THE RESPONDENTS.
EXHIBIT P2 A TRUE COPY OF THE COMPLAINT SUBMITTED BY
THE 1ST PETITIONER ORGANIZATION BEFORE THE
1ST RESPONDENT DATED 24.06.2019.
EXHIBIT P3 A TRUE COPY OF THE COMPLAINT SUBMITTED BY
THE 1ST PETITIONER ORGANIZATION BEFORE THE
2ND RESPONDENT DATED 24.06.2019.
EXHIBIT P4 A TRUE COPY OF THE COMPLAINT SUBMITTED BY
THE 1ST PETITIONER ORGANIZATION BEFORE THE
3RD RESPONDENT DATED 24.06.2019.
EXHIBIT P5 A TRUE COPY OF THE JUDGMENT OF WA NO.964 OF
2018 DATED 06.08.2018.
EXHIBIT P6 A TRUE COPY OF THE TERMS AND CONDITIONS
GOVERNING THE LOAN OF INDANE CYCLINDER
AND REGULATORS TO CUSTOMERS.
EXHIBIT P7 A TRUE COPY OF THE BRIEF OF FACILITIES
PUBLISHED IN THE WEBSITE OF INDANE OIL
CORPORATION.
RESPONDENT EXHIBITS:
EXHIBIT R1(a) TRUE COPY OF THE SHOWCAUSE NOTICE ISSUED
TO ONE M/S KANDARUMADATHIL AGENCIES ON
30.12.2019
EXHIBIT R1(b) TRUE COPY OF THE CIRCULAR ISSUED BY THE
MINISTRY OF PETROLEUM & NATURAL GAS DATED
16.2.2018.
Exhibit R2(A) TRUE COPY OF THE JUDGMENT DATED 03/12/2021
IN W.A. NO. 1785/2019.
EXHIBIT R5(a) TRUE COPY OF THE ORDER PASSED BY THE STATE
LEVEL COORDINATOR OF HTE OIL MARKETING
COMPANIES DATED 21.05.2021.
EXHIBIT R5(b) TRUE COPY OF CIRCULAR NO.3/2021-22 DATED
25.06.2021.
EXHIBIT R3(a) TRUE COPY OF THE JUDGMENT DATED 03.12.2021
IN WRIT APPEAL NO.1785 OF 2019.
EXHIBIT R2(a) TRUE COPY OF JUDGMENT DATED 03.12.2021 IN
WRIT APPEAL NO. 1785 OF 2019.
True Copy
PS To Judge.
rv
APPENDIX OF WP(C) 27010/2019
PETITIONERS' EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE BYE-LAW OF THE IST
PETITIONER SOCIETY.
EXHIBIT P2 TRUE COPY OF THE REGISTRATION CERTIFICATE
OF THE IST PETITIONER SOCIETY.
EXHIBIT P3 TRUE COPY OF THE PORTABILITY SCHEME
INTRODUCED BY OIL MARKETING COMPANIES.
EXHIBIT P4 TRUE COPY OF THE INFORMATION DATED
24.6.2019 GIVEN BY THE UNION MINISTER FOR
PETROLEUM AND NATURAL GAS.
EXHIBIT P5 TRUE COPY OF THE LETTER DATED 5.4.2013
ISSUED BY THE INDIAN OIL CORPORATION TO THE
UNION GOVERNMENT AND THE REPLY DATED
14.8.2013 GIVEN BY THE UNION GOVERNMENT TO
THAT LETTER.
EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 6.8.2018 IN
W.A.NO.964/2018 OF THIS HON'BLE COURT.
EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 30.9.2019 IN
WPC NO.8753/2018 OF THE BOMBAY HON'BLE
COURT.
EXHIBIT P7 TRUE COPY OF REPRESENTATION SUBMITTED BY
THE IST PETITIONER BEFORE THE HON'BLE
MINISTER FOR PETROLEUM AND NATURAL GAS.
EXHIBIT P8 TRUE COPY OF REPRESENTATION SUBMITTED BY
THE IST PETITIONER BEFORE THE HON'BLE
SECRETARY FOR PETROLEUM AND NATURAL GAS.
EXHIBIT P9 TRUE COPY OF REPRESENTATION SUBMITTED BY
THE IST PETITIONER BEFORE THE CHAIRMAN,
INDIAN OIL CORPORATION.
EXHIBIT P10 TRUE COPY OF REPRESENTATION SUBMITTED BY
THE IST PETITIONER BEFORE THE CHAIRMAN,
BHARATH PETROLEUM CORPORATION.
EXHIBIT P11 TRUE COPY OF REPRESENTATION SUBMITTED BY
THE IST PETITIONER BEFORE THE CHAIRMAN,
HINDUSTAN PETROLEUM CORPORATION.
RESPONDENTS' EXHIBITS:
EXHIBIT R5 (a) TRUE COPY OF THE UNIFILED SELECTION
GUIDELINES 2016.
EXHIBIT R5 (b) TRUE COPY OF THE INTER COMPANY TRANSFER OF
CONNECTIONS GUIDELINES DATED 30.11.2018
EXHIBIT R5 (c) TRUE COPY OF THE SUBSCRIPTION VOUCHER
ISSUED BY THE 2ND RESPONDENT.
EXHIBIT R1(a) TRUE COPY OF THE SHOWCAUSE NOTICE ISSUED
TO ONE M/S. KANDARUMADATHIL AGENCIES ON
30.12.2019.
EXHIBIT R1(b) TRUE COPY OF THE CIRCULAR ISSUED BY THE
MINISTRY OF PETROLEUM & NATURAL GAS DATED
16.02.2018.
EXHIBIT R4(a) TRUE COPY OF TEH LPG DEALERSHIP AGREEMENT
DATED 14.01.2021 EXECUTED BY THE 4TH
RESPONDENT WITH AN LPG DISTRIBUTOR.
EXHIBIT R4(b) TRUE COPY OF JUDGMENT DATED 20.11.2019 IN
W.P.(C) NO. 27010 OF 2019.
EXHIBIT R2(a) TRUE COPY OF JUDGMENT DATED 03.12.2021 IN
WRIT APPEAL NO. 1785 OF 2019.
True Copy
PS to Judge.
rv
APPENDIX OF WP(C) 22449/2022
PETITIONER'S EXHIBITS:
Exhibit P1 TRUE COPY OF LETTER DATED 26.07.2020 OF
COORDINATOR, STATE OFFICE, BHARAT
PETROLEUM CORPORATION LTD COMMUNICATED
TO THE PETITIONER UNDER RTI ACT.
Exhibit P2 TRUE COPY OF LETTER DATED 13.08.2020 SENT BY
THE PUBLIC INFORMATION OFFICER, INDIAN OIL
CORPORATION LTD TO THE PETITIONER UNDER
RTI ACT.
Exhibit P3 TRUE COPY OF MASS PETITION DATED 22.09.2020
FILED BY THE PETITIONER BEFORE THE
TERRITORY MANAGER, KOCHI, BHARAT
PETROLEUM CORPORATION LTD.
Exhibit P4 TRUE COPY OF PETITION DATED 01.03.2021 FILED
BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, KANNUR FILED BY THE
PETITIONER AND OTHER AGGRIEVED CONSUMERS
ALONG WITH ITS ENGLISH TRANSLATION.
Exhibit P5 TRUE COPY OF ORDER DATED 17.04.2021 PASSED
BY THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, KANNUR IN
C.C.NO.67/2021.
Exhibit P6 TRUE COPY OF REPRESENTATION DATED
08.10.2020 FILED BY THE PETITIONER BEFORE THE
TERRITORY MANAGER, KOCHI TERRITORY, BHARAT
PETROLEUM CORPORATION LTD, ALONG WITH
ACKNOWLEDGMENT CARD.
Exhibit P7 TRUE COPY OF REPRESENTATION DATED
14.06.2022 SUBMITTED BY SMT. RATHA TO HILL
AREA LPG CONSUMERS SAMITHI ON BEHALF OF
THE CONSUMERS OF VENMANI AREA, THAVINHAL
PANCHAYAT OF WAYANAD DISTRICT, ALONG WITH
ITS ENGLISH TRANSLATION.
Exhibit P8 TRUE COPY OF CIRCULAR NO.20019/2/2016-LPG
DATED 23.06.2016 NAMELY 'UNIFIED GUIDELINE
FOR SELECTION OF LPG DISTRIBUTOR 2016'
ISSUED BY THE 1ST RESPONDENT.
Exhibit P9 TRUE COPY OF CIRCULAR NO.P-20019/56/2016-
LPG DATED 16.02.2018 ISSUED BY THE 1ST
RESPONDENT.
Exhibit P10 TRUE COPY OF JUDGMENT DATED 14.02.2022
PASSED BY THIS HONOURABLE COURT IN W.P.
(C).NO.34439 OF 2019.
Exhibit P11 TRUE COPY OF JUDGMENT DATED 01.10.2019
PASSED BY THE HONOURABLE HIGH COURT OF
ANDHRA PRADESH IN W.P.NO.12551 OF 2018.
RESPONDENT EXHIBITS:
Exhibit R6(A) A TRUE COPY OF THE LIST OF ACTIVE MEMBERS ON
THE ROLLS OF ALL INDIA LPG DISTRIBUTORS
FEDERATION (KERALA CIRCLE)
Exhibit R6(B) A TRUE COPY OF THE UNIFIED GUIDELINES FOR
SELECTION OF LPG DISTRIBUTORS
Exhibit R6(C) A TRUE COPY OF THE COMMUNICATION DATED 10-
08-2022 SENT TO THE REGISTRAR OF THE HON'BLE
SUPREME COURT OF INDIA
Exhibit R6(D)a A TRUE COPY OF THE COMMUNICATION DATED 10-
08-2022 ISSUED TO THE REGISTRAR, HON'BLE
SUPREME COURT OF INDIA
True Copy
PS to Judge.
rv
