Mustafa Raza Khan Jilani vs The Indian Oil Corporation
2021 Latest Caselaw 5129 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.5776 of 2020
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Mustafa Raza Khan Jilani, Son of Late Mahboob Alam Khan, Resident of Ward No. 13, Village- Satjora, Post- Satjora, P.S.- Panapur, District- Saran.

... ... Petitioner/s Versus

1. The Indian Oil Corporation through the Secretary, Petroleum and Natural Gas Department, Government of India, New Delhi.

2. The Indian Oil Corporation Limited through its Chairman, G-9, Ali Yavar Jung Marg, Bandra (East), Mumbai- 400051.

3. The General Manager-Cum-State Officer, Indian Oil Corporation Limited (Marketing Division), Bihar State Office, Lok Nayak Jai Prakash Bhawan, Dak Banglow Road, Patna.

4. The Indian Oil Corporation Limited Eastern Division, Indane Area Office, Sahi Bhawan, Exhibition Road, Patna.

5. The Indian Oil Corporation Limited (Marketing Division) through Senior Divisional Officer, Krishna Complex, Akharaghat Road, Muzaffarpur.

6. The Dealer Selection Committee Indian Oil Corporation Limited (Marketing Division), IInd Floor, Bihar Industries Association Building, Sinha Library Road, Patna.

7. The Head of the Divisional Office Muzaffarpur Divisional Office, Krishna Complex, Akharaghat Road, Muzaffarpur.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Gyan Prakash, Advocate For the Respondent/s : Mr. Amlesh Kumar Varma, Advocate ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE P. B. BAJANTHRI ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 01-11-2021

Heard learned counsel for the parties. Patna High Court CWJC No.5776 of 2020 dt.01-11-2021

Petitioner has prayed for the following relief(s):-

"(i) For issuance a writ in the nature of certiorari for quashing the letter dated 5-02-2020 issued by the Head of the Divisional Office, Muzaffarpur, Indian Oil Corporation Limited by which without affording any opportunity to the petitioner he has hold that his candidature has been found ineligible, however he may consider for selection along with Group 3 applicants with an observation that the lease documents submitted by the petitioner is not valid for consideration having lease period of 19 years.

(ii) For issuance of a writ including a writ in the nature of Mandamus commanding the respondents to consider the candidature of the petitioner for grant of Retail outlet Dealership in pursuance of their own decision dated 12-01-2019 informing the petitioner that he is the only one eligible candidate and he has been declared as selected.

(iii) For issuance of a writ including a writ in the nature of Mandamus to award an opportunity for rectification of defect in the lease document, if any, as per the guideline of the Indian Oil Corporation Limited.

(iv) For holding that after a year of deciding the petitioner's candidature as only one eligible candidate and declared as selected for grant of Retail outlet Dealership now at this stage without awarding any opportunity to rectify the defect, if any, in lease document, the decision of the I.O.C.L. to consider the candidature of the petitioner's with Group 3 applicants is not tenable being arbitrary and malafide and against the principle of the natural justice.

(v) For issuance of an appropriate writ/direction Patna High Court CWJC No.5776 of 2020 dt.01-11-2021

commanding the respondents to stay their hands from allotment of letter of Intent to any other candidate with respect to Retail outlet Dealership at within 3 Km from Madhya Vidhyalaya, Sisari on SH-104 towards Taraiya District- Saran.

(vi) To any other relief(s) for which the petitioner be found entitled to in the factual matrix of the case."

The Hon'ble Supreme Court in D. N. Jeevaraj Vs.

Chief Secretary, Government of Karnataka & Ors, (2016) 2

SCC 653, paragraphs 34 to 38 observed as under:-

"34. The learned counsel for the parties addressed us on the question of the bona fides of Nagalaxmi Bai in filing a public interest litigation. We leave this question open and do not express any opinion on the correctness or otherwise of the decision of the High Court in this regard.

35. However, we note that generally speaking, procedural technicalities ought to take a back seat in public interest litigation. This Court held in Rural Litigation and Entitlement Kendra v. State of U.P. [Rural Litigation and Entitlement Kendra v. State of U.P., 1989 Supp (1) SCC 504] to this effect as follows: (SCC p. 515, para 16) "16. The writ petitions before us are not inter parties disputes and have been raised by way of public interest litigation and the controversy before the court is as to whether for social safety and for creating a hazardless environment for the people to live in, mining in the area should be permitted or stopped. We may not be taken to have said that for public interest litigations, procedural laws do not apply. At the same time it has to be remembered that every technicality in the procedural law is not available as a defence when a matter of grave public importance is for consideration before the court."

36. A considerable amount has been said about public interest litigation in R&M Trust [R&M Trust v.

Koramangala Residents Vigilance Group, (2005) 3 Patna High Court CWJC No.5776 of 2020 dt.01-11-2021

SCC 91] and it is not necessary for us to dwell any further on this except to say that in issues pertaining to good governance, the courts ought to be somewhat more liberal in entertaining public interest litigation. However, in matters that may not be of moment or a litigation essentially directed against one organisation or individual (such as the present litigation which was directed only against Sadananda Gowda and later Jeevaraj was impleaded) ought not to be entertained or should be rarely entertained. Other remedies are also available to public spirited litigants and they should be encouraged to avail of such remedies.

37. In such cases, that might not strictly fall in the category of public interest litigation and for which other remedies are available, insofar as the issuance of a writ of mandamus is concerned, this Court held in Union of India v. S.B. Vohra [Union of India v. S.B. Vohra, (2004) 2 SCC 150: 2004 SCC (L&S) 363] that: (SCC p. 160, paras 12-13) "12. Mandamus literally means a command. The essence of mandamus in England was that it was a royal command issued by the King's Bench (now Queen's Bench) directing performance of a public legal duty.

13. A writ of mandamus is issued in favour of a person who establishes a legal right in himself. A writ of mandamus is issued against a person who has a legal duty to perform but has failed and/or neglected to do so. Such a legal duty emanates from either in discharge of a public duty or by operation of law. The writ of mandamus is of a most extensive remedial nature. The object of mandamus is to prevent disorder from a failure of justice and is required to be granted in all cases where law has established no specific remedy and whether justice despite demanded has not been granted."

38. A salutary principle or a well-recognised rule that needs to be kept in mind before issuing a writ of mandamus was stated in Saraswati Industrial Syndicate Ltd. v. Union of India [Saraswati Industrial Syndicate Ltd. v. Union of India, (1974) 2 SCC 630] in the following words: (SCC pp. 641-42, paras 24-25) "24. ... The powers of the High Court under Article 226 are not strictly confined to the limits to which proceedings for prerogative writs are subject in English practice. Patna High Court CWJC No.5776 of 2020 dt.01-11-2021

Nevertheless, the well-recognised rule that no writ or order in the nature of a mandamus would issue when there is no failure to perform a mandatory duty applies in this country as well. Even in cases of alleged breaches of mandatory duties, the salutary general rule, which is subject to certain exceptions, applied by us, as it is in England, when a writ of mandamus is asked for, could be stated as we find it set out in Halsbury's Laws of England (3rd Edn.), Vol. 11, p. 106:

'198. Demand for performance must precede application.--As a general rule the order will not be granted unless the party complained of has known what it was he was required to do, so that he had the means of considering whether or not he should comply, and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce, and that that demand was met by a refusal.'

25. In the cases before us there was no such demand or refusal. Thus, no ground whatsoever is shown here for the issue of any writ, order, or direction under Article 226 of the Constitution."

After the matter was heard for some time, learned

counsel for the petitioner, under instructions, states that

petitioner shall be content if a direction is issued to the

authority concerned to consider and decide the representation

which the petitioner shall be filing within a period of four

weeks from today for redressal of the grievance(s).

Learned counsel for the respondents states that if such

a representation is filed by the petitioner, the authority

concerned shall consider and dispose it of expeditiously and Patna High Court CWJC No.5776 of 2020 dt.01-11-2021

preferably within a period of four months from the date of its

filing along with a copy of this order.

Learned counsel for the respondents further states that

perhaps the respondents may consider granting relaxation of

the condition stipulated for the period of lease, more so in view

of the condition contained in the clause for extension.

Statement accepted and taken on record.

As such, petition stands disposed of in the following

terms:-

(a) Petitioner shall approach the authority concerned

i.e. Respondent No. 4, namely The Indian Oil Corporation

Limited, Eastern Division, Indane Area Office, Sahi Bhawan,

Exhibition Road, Patna, Respondent No. 5, namely The Indian

Oil Corporation Limited (Marketing Division), through Senior

Divisional Officer, Krishna Complex, Akharaghat Road,

Muzaffarpur/Respondent No. 7, namely The Head of the

Divisional Office, Muzaffarpur Divisional Office, Krishna

Complex, Akharaghat Road, Muzaffarpur within a period of

four weeks from today by filing a representation for redressal

of the grievance(s);

(b) The said respondent(s) shall consider and dispose

it of expeditiously by a reasoned and speaking order preferably Patna High Court CWJC No.5776 of 2020 dt.01-11-2021

within a period of four months from the date of its filing along

with a copy of this order;

(c) Needless to add, while considering such

representation, principles of natural justice shall be followed

and due opportunity of hearing afforded to the parties;

(d) Equally, liberty is reserved to the petitioner to take

recourse to such alternative remedies as are otherwise available

in accordance with law;

(e) We are hopeful that as and when petitioner takes

recourse to such remedies, as are otherwise available in law,

before the appropriate forum, the same shall be dealt with, in

accordance with law and with reasonable dispatch;

(f) Liberty reserved to the petitioner to approach the

Court, if the need so rises subsequently on the same and

subsequent cause of action;

(g) We have not expressed any opinion on merits. All

issues are left open;

(h) The proceedings, during the time of current

Pandemic- Covid-19 shall be conducted through digital mode,

unless the parties otherwise mutually agree to meet in person

i.e. physical mode;

The petition stands disposed of in the aforesaid terms. Patna High Court CWJC No.5776 of 2020 dt.01-11-2021

Interlocutory Application(s), if any, stands disposed

of.

(Sanjay Karol, CJ)

( P. B. Bajanthri, J)

rakhi/-

AFR/NAFR
CAV DATE
Uploading Date          02.11.2021
Transmission Date