JUDGMENT
A.H. Joshi, J.
1. Learned Advocate for respondent No. 2 had moved for hearing this petition out of turn on the ground that pendency of the petition is prejudicing the claim of respondent No. 2, particularly in view that advertisement is being issued by the Oil Company for Warud, and urged that, in this background, it would be necessary to hear the writ petitions at the earliest.
2. Writ Petition No. 3355 of 1994 and Writ Petition No. 3600 of 1994 which have same issue are taken up for final hearing by consent. Heard learned Advocates for parties.
For convenience we shall refer to the facts, parties and records as in Writ Petition No. 3355 of 1994.
3. The facts in-brief, are that respondent No. 1 Oil Company issued advertisement on 7-11-1985 and then on 28-8-1993 inviting applications for allotment of dealership for Liquid Petroleum Gas (L.P.G.) retail outlet of respondent No. 1 Company. Admittedly petitioner has applied with reference to advertisement dated 28-8-1993.
4. While process of dealing with applications was half way through respondent No. 3 issued a communication to respondent No. 1 Company, informing that respondent No. 2 herein has been allotted L.P.G. Distributorship on compassionate ground. Letter of intent has been issued on 8th September, 1994. Apparently in view that for the same location LPG retail dealership was being given to respondent No. 2, further process in that matter automatically came to halt. Naturally respondent No. 1 even did not call the petitioner for interview.
5. Petitioner has therefore challenged communication dated 25th July, 1994, Annexure-C and letter dated 8th September, 1994 Annexure-D allotting LPG dealership to the respondent No. 2. The grounds of challenge contained in the petition should be better referred to by quoting from the petition as follows:
It is submitted that the letter at Annexure-C as also the letter at Annexure-D, which is based on the letter at annexure-D, which is based on the letter at Annexure-C are illegal being violative of the guarantee of Article 14 of the Constitution. It is submitted that the appointment of a person as Distributor of L.P.G. is a benefit which can be conferred by the respondent Nos. 3 and 4. Such a benefit cannot be conferred without giving the persons, who are similarly situated an opportunity to apply for the same and being considered for the same. It is submitted that even if it is assumed that the respondent No. 2 has been appointed as distributor on compassionate ground, then also his appointment is violative of the guarantee of Article 14 of the Constitution because it was never made known by public announcement that the respondent No. 4 proposes to award the distributorship of L.P.G. at Warud on compassionate ground. It was also never made known by public announcement as to what are the compassionate grounds on which the distributorship is being awarded. It is submitted that in any case once having published the advertisements dated 28-8-1993 and 7-11-1985 inviting applications from the eligible candidates, the respondents are estopped from awarding the distributorship of the L.P.G. at Warud on any other ground to any other person except the persons who have applied pursuant to those advertisements. It is submitted that the letters at Annexure-C and D are thus absolutely illegal and are liable to be quashed and set aside.
6. Respondents No. 1 and 4 have strongly opposed the petition by filing affidavit in reply dated 22nd February, 1996 on the following grounds:
a) That the petitioner has been granted a letter of intent on the basis of policy of grant of dealership as formulated and given to the Government by the Hon’ble Supreme Court in its order passed in Writ Petition (Civil) No. 886 of 1993.
b) Allotment of agency/dealership on compassionate ground in favour of respondent No. 2 and issuance of advertisement of 1993 are sheer co-incidence.
c) Petitioner’s right to seek allotment is unaffected though due to interim relief granted in this petition the procedure has remained in abeyance the petitioner has no locus-standi to challenge the allotment in favour of respondent No. 2 due to pendency of the petition, the consumers and many people of Warud are suffering the petitioner may have its early decision.
d) It is the case of allotment on compassionate ground and this aspect J -is not amenable for judicial scrutiny.
7. Respondents No. 1 and 3 Union of India have opposed the petition urging that respondent No. 2 has been allotted LPG distributorship at Warud, District: Amravati on compassionate ground and this allotment is in time with the policy. The powers of allotment on compassionate ground are outside the market plan. As per order passed by the Hon’ble Supreme Court limit for compassionate allotment is fixed at 10%. Location at Warud does not have potential for viable LPG distributorship and the Indian Oil Corporation has been advised to shift the distributorship from Warud.
All that has been averred and urged by respondent No. 3, insofar as aspect of compassionate allotment is concerned, is as follows:
…As the allotment of dealership/distributorship on compassionate grounds is made keeping in view the specific circumstances and need of the individual case, the question of inviting applications for allotment of distributorship on compassionate grounds does not arise.
8. Allotment on compensation ground has been justified by respondent No. 2 more or less on the lines what has been raised by respondent No. 1. It is further urged that once the allotment is done on compassionate ground based on the policy as ordered by the Hon’ble Supreme Court in its judgment in Civil Writ Petition No. 886 of 1993 to the extent of 10% of the average annual marketing plan, the Oil Selection Board has no role in the matter. It has further been urged that location Warud does not have potential for viable LPG distributorship and accordingly letter of consent/request is submitted to Indian Oil Corporation to shift the distributorship from Warud to any other place. It is further alleged that since the allotment in favour of respondent No. 2 was not resulted in cancellation of LPG distributorship advertised on 7-11-1985 and 28-8-1993, the petition is not maintainable being without cause of action, and that the petitioner has no locus-standi. ,
9. It is well settled as to what shall be the extent of scrutiny that is permissible in administrative actions, however, nothing precludes this Court from scrutinising the decision making process. Truthfulness of plea in defence can also be examined.
Thus we find that the crux of the contention is legality of allotment on compassionate ground, and upon what has been relied crux of compassionate allotment is “specific circumstances and need of individual” as noted is sub para of paragraph 8 herein above.
10. Though this ground of “specific circumstances and need of individual” has been put forward in defence, the facts, if any. Constituting these facts, which set of facts alone have to support such allotment have not been brought on record by any of the respondents No. 3, the Union Government nor the petitioner has disclosed any material or facts in support.
11. The respondent No. 3 wants the Court to accept the word of respondent No. 3, that the Court shall refrain itself from undertaking any judicial scrutiny of decision of the respondent No. 3 granting to the respondent No. 3 the compassionate allotment. The material, if any, available on record with respondent No. 3 alone should reveal facts supporting the decision of compassionate allotment. The claim of compassionate allotment is made but facts leading to the decision are withheld from this Court. Thus the judicial scrutiny is hindered by the respondent No. 3.
12. The Court would ordinarily recognise the powers of the Central Government as claimed on the basis of the judgment of the Hon’ble Supreme Court that it has power to reserve quota of 10% of the annual marketing plan quota to be reserved for compassionate allotment. The question as to whether the Central Government has implemented the same reasonably and fairly and acted within bounds of its powers while exercising these powers of allotting discretionary quota is in any situation, open and available for judicial scrutiny, particularly when the same has come before the Court by way of a challenge through a petition.
Respondent No. 3 has corroborated the fact that there cannot be two dealerships at Warud. In the result due to allotment to respondent No. 2, all other applications received furtherance to advertisement for Warud location would be rendered infructuous and this fact proves that the petitioner has locus-standi.
13. In view that the Union of India has stated before this Court that Warud is not viable location for LPG and therefore, Indian Oil Corporation has been directed to shift the distributorship is the matter creating a situation of self contradiction. As per the market plan which is matter of absolute domain of the oil company it has to be believed that location Warud was not recognized by respondent No. 1 unmindfully. It chose the location and then only issued advertisement in the year 1985 and then in 1993. Simultaneously same location has been acted upon as a location available by the Union of India. It has preferred the said location within its 10% quota for compassionate allotment. Now respondent No. 3 is urging that since location has been considered to be inviable and the OU Company has been advised to re-locate the dealership.
14. We find that respondent No. 3 has failed to bring on record before this Court the circumstances on which the compassionate allotment was done and has tried to camouflage its action by vague arguments. We, therefore, accept the contents of the petition in toto. The aspect of effect of relocation of dealership too needs to be ignored in view of recent advertisement by Oil Company for same location.
15. We consider it necessary to mention that the dealership in question was advertised in 1993 and impugned allotment is of 25-7-1994. The Affidavit in reply of respondent No. 3 was filed on 27-2-1996 relying on the policy formulated in the judgment of Hon’ble Supreme Court which is dated 31st March, 1995.
We have not been informed nor record suggests that any such policy was in existence prior to the judgment of the Hon’ble Supreme Court. Be it as it may, however, it was the duty of respondent No. 3 to demonstrate that the decision of allotting dealership to the petitioner was objectively reached and to show what material was available before respondent No. 3.
16. We, therefore, hold that petitioner’s claim has been frustrated due to allottment of LPG distributorship on compassionate ground to respondent No. 2. We also hold that present is a fit case where the compassionate allotment done in favour of the respondent No. 2 is not justified by respondent No. 3 and hence it deserves to be quashed and set aside.
We, therefore, quash and set aside the allotment letter dated 25-7-1994 Annexure-C and Letter of Intent, dated 8th September, 1994, Annexure-D.
17. Rule made absolute in terms of prayer Clause (a-i) in Writ Petition No. 3355 of 1994. In the circumstances, the parties are directed to bear own costs. Consequent to order in Writ Petition No. 3355/1994 no further and separate orders are necessary on Writ Petition No. 3355/1994, as said order governs this writ petition too.
In view of above, all Civil Applications stand disposed of. All interim orders passed in favour and against the respondents are set aside.