BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 25/03/2011 CORAM THE HONOURABLE MR.JUSTICE B.RAJENDRAN Writ Petition (MD)No.14683 of 2010 S.Maheswari ... Petitioner Vs. 1.The Hindustan Petroleum Corporation Ltd., Rep. By its General Manager, South Zone, Thalamuthu Natarajan Building, 4th Floor, Gandhi Irwin Road, Egmore, Chennai-600 008. 2.The Hindustan Petroleum Corporation Ltd., Madurai Retail Regional Office, Rakesh Towers, Plot No.5, S.S.Colony 5th Street, Bye Pass Road, Madurai. 3.A.Muthuramalingam (R-3 impleaded as respondent vide order made in M.P.No.1 of 2011, dated 28.02.2011) ... Respondents Prayer Writ Petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus, calling for the records pertaining to the impugned notification published by the respondents Corporation in "The Hindu", dated 20.06.2010 insofar as Sl.No.211 in Mallipudur Village on the State Highways 42 alone and quash the same and consequently direct the respondents to re-issue the notification for Malli village in accordance with the rules of appointment for dealership of retail outlet in Malli village and allow the petitioner to participate in the said selection process in accordance with the rules. !For Petitioner ... Mr.Veera.Kathiravan ^For Respondents 1 and 2 ... Mr.M.Sridher For 3rd Respondent ... Mr.M.Karthikeya Venkitachalapathy :ORDER
The prayer in the writ petition is to quash the notification published by
the respondents Corporation in “The Hindu”, dated 20.06.2010 insofar as
Sl.No.211 in Mallipudur Village on the State Highways 42 alone and consequently
to direct the respondents to re-issue the notification for Malli village for
appointment of dealership of retail outlet in Malli village and to allow the
petitioner to participate in the said selection process in accordance with the
rules.
2.The petitioner would contend that she is eligible candidate for
participating in the retail outlet of petroleum and petroleum products.
According to her, the first respondent called for applications for appointment
of dealer for retail outlet for petroleum products of the respondent Corporation
in various places. In the said notification, Sl.No.211 is for the dealer at
Mallipudur village on the State Highways-42 which is allotted for the open
category. According to her, Mallipudur is a new village and the village is
called Malli village and both the villages are one and the same village as per
the revenue records. She would also contend that one of the conditions in the
notification in Sl.No.211 is that the proposed site must be abutting the State
Highways 42. She would further contend that the State Highways 42 is crossing
only Malli village and not Mallipudur village. Therefore, she would contend that
in the notification it should have been only stated that it is to be situated in
the State Highways 42 only the Malli village and not Mallipudur and according to
her, Malli is far away from the State Highways 42. Therefore, the entire
notification was issued on a misconstrued fact of the geographical area. The
State Highways 42, is only crossing Malli village and if a proper notification
is issued, the petitioner would also be eligible as she is residing at Malli
village. Since in the notification Mallipudur village was wrongly mentioned
instead of Malli village and therefore, she could not file an application for
the dealership. According to her, had the Malli village been mentioned in the
notification, she would have applied and hence, she challenges the notification
itself for the grant of dealership.
3.The second respondent filed a counter affidavit stating that the writ
petition will not lie since as per the notification for the distributorship for
the item in Sl.No.211 one of the requirements is that the land should be
situated abutting the State Highways 42. They would specifically state that the
Malli village is not situated in State Highways 42. In fact, the Tahsildar had
issued communication, dated 02.09.2010 as Mallipudur village lies in State
Highways 42 and notice was issued after due verification. It is further
submitted by the second respondent that the submission of the petitioner that
if the notification was published as contended by the petitioner, she would have
applied, is not sustainable in law since she has not even applied, she has no
right to file this writ petition. It is further stated that a rival dealer one
Tamilarasi filed a writ petition in W.P.(MD)No.11966 of 2010 challenging the
notification on the ground that her outlet is close to the proposed retail
outlet and the same will affect her business. This Court by order dated
09.11.2010 dismissed the writ petition. According to the second respondent,
interview for the location at S.No.211 on SH 42 was completed and the first
empanelled candidate namely, A.Muthuramalingam was also issued a letter of
intent on 24.11.2010 and he has also completed the formalities of signing the
documents with the oil company and therefore, the interim order passed by this
court would cause great hardship and loss to them.
4.The successful bidder filed an application to implead himself and
subsequently, he is impleaded as third respondent in the writ petition.
According to him, he was also a resident of Malli village and his land situated
in SH.42 and the petitioner herein has even not filed any application, she has
no locus standi to file this writ petition and she is the person set up by the
said Tamilarasi who is the rival dealer running petroleum outlet by another
Corporation which has already been dismissed and the said Tamilarasi is none
other than the petitioner’s brother’s wife. The Malli village is a hamlet
situated within the revenue jurisdiction of Malli village group and they have a
road under the control of District Administration leading to Mallipudhur village
is starting from the said SH-42 at a point called Mallipudur Road. The
notification in Sl.No.211 issued by the Hindustan Petroleum Corporation Limited
also clearly mentioned Mallipudhur on SH-42 (SH-42 kPJ ky;ypg[Jhh;). Therefore,
this is nothing but a business rivalry, the present writ petition has been filed
by the petitioner on behalf of the said Tamilarasi who has already lost her
right to prolong the issue as long as possible. According to him, he has
obtained no objection certificate from various authorities and submitted the
same to the respondent Corporation. Therefore, the writ petition is not
maintainable and the same is liable to be dismissed.
5.Heard the submissions of the learned counsel for the respective parties
and perused the materials available on record.
6.The only point which has been raised by the writ petitioner is that
since she belongs to Malli village, she is entitled to participate in the
selection process for the petroleum products. She has challenged the
notification only on the ground that in the notification specifically mentioned
in S.No.211 as State Highways 42 on Mallipudur village whereas the State
Highways 42 does not pass through the Mallipudur village and it is only Malli
village. Therefore, the notice is wrong had the notification specifically
mentioned the Malli village, she would have participated. Therefore, the
notification itself is wrong and consequently, the allotment itself is bad. In
this connection, it is pertinent to refer the paragraph 5 of the affidavit filed
in support of the writ petition wherein she herself categorically admitted that
“the said Mallipudur is the new village and the old village is called Malli
village and both Malli village and Mallipudur village are belonging to the same
village as per the revenue records”. Therefore, the admission of the petitioner
is very clear that Malli and Mallipudur villages are only belonging to the same
hamlet.
7.Pending this writ petition, this Court sought for report from the
Revenue Divisional Officer to find out whether S.H.42 is crossing Mallipudur
Village or Malli village. Pursuant to the direction of this Court, the Revenue
Divisional Officer in his proceedings in Roc.A3/1027/11, dated 01.03.2011
addressed to the Additional Government Pleader has categorically stated that as
per revenue records, Malli is one of the revenue village in Srivilliputhur
Taluk. Mallipudur is not a revenue village. Mallipudur is one of the hamlet of
Malli Revenue village. Malli Panchayat and Mallipudur Panchayat lies in Malli
revenue village. SH.42 is crossing over Malli and Mallipudur villages.
8.The grievance of the petitioner is that had Malli village is mentioned
in the notification, she would have participated. But it is specifically
mentioned SH.42. As per the report, S.H.42 is crossing both the villages as per
the notification the property is to be situated in S.H.42. The third respondent
who is the successful bidder, he has also produced a lease deed copy in his
favour in respect of the land to be allotted for the retail outlet. In the
document, the property is situated in Malli village in S.No.27/1, the
boundaries of the property, it is clearly stated Malli and Mallipudur villages
in S.H.42 main road. Therefore, the contention raised by the petitioner does not
stand to scrutiny at all. The fourth respondent land is situated abutting S.H.42
by which he is eligible to participate. Therefore, the grievance of the
petitioner as Mallipudur village alone has been mentioned, she could not
participate does not stand to scrutiny at all. It is now brought to the notice
of this Court by the Corporation as well as the third respondent that
W.P.(MD)No.11996/2010 was filed by one Tamilarasi who is running another petrol
bunk which was granted by the another corporation petrol outlet on the ground
that if the present bunk is established her business would be affected. The said
writ petition was dismissed by this Court and the petitioner who is none other
than the petitioner’s brother wife and only at her instigation, the present writ
petition has been filed.
9.Further, it is very clearly established that the hamlet situated in
the revenue jurisdiction of Malli village group and in the notification itself
is clearly stated that Mallipudur on S.H.42. Therefore, the petitioner now
cannot apply the word Malli and Mallipudur and seek for cancellation especially
when the third respondent has been found eligible in all perspectives and an
order has been granted in favour of him. In this connection, there is no merits
in the writ petition at all as she has not even applied/participated, she cannot
challenge the same.
10.Insofar as it relates to the challenge to the allotment of petroleum
products, there is also an appeal provision as per the Division Bench decision
of this Court and I have followed the said decision in E.Joshua Livingston
Vs.The Senior Divisional Retail Sales Manager, Indian Oil Corporation, Trichy
Divisional Office and others made in W.P.No.27344 of 2009, dated 02.03.2011.
11.In the decision of this Court reported in (K. Indira vs. Union of
India, rep. By its Secretary, Ministry of Petroleum and Natural Gas, New Delhi
and others) (2006) 3 M.L.J. 492 this Court held that judicial review is
permitted only on the established grounds of malafide, arbitrariness or
unreasonableness. It was also held in that judgment that the Board, which is
vested with the functions of selection, is an independent entity consisting of
retired Judges and retired Civil Servants possessing necessary expertise and
experience to perform them and therefore, there is minimal scope for alleging
malafide against such a body. In this case, admittedly, the petitioner has not
alleged malafide in the awarding of marks by the corporation in favour of the
third respondent herein and therefore, the decision of the corporation to award
marks in favour of the third respondent need not be interfered with.
12.In the decision of the Honourable Supreme Court in Civil Appeal No.
6798 of 2002 (arising out of SLP (C) No. 4705 of 2003) dated 28.08.2003 between
(K.Vinod Kumar vs. S. Palanisamy and others) it was held in para-14 as follows:-
“The law is settled that over proceedings and decisions taken in
administrative matters, the scope of judicial review is confined to the decision
making process and does not extend to the merits of the decision taken. No
infirmity is pointed out in the proceedings of the selection Board which may
have the effect of vitiating the selection process. The capability of the
appellant herein to otherwise perform as an LPG distributor is not in dispute.
The High Court was not, therefore, justified in interfering with the decision of
the Selection Board and the decision of the BPCL to issue letter of allotment to
the appellant herein.”
13.In the four Judges bench of the Honourable Supreme Court reported in
(Haryana Financial Corporation and another vs. M/s. Jagdamba Oil Mill and
another) (2002) 1 CTC 503, in para-14, it was held as follows:-
“14.The fairness required of the Corporations cannot be carried to the
extent of enabling them from recovering what is due to them. The matter can be
looked at from another angle. The corporation is an independent autonomous
statutory body having its own constitution and rules to abide by, and functions
and obligations to discharge. As such in the discharge of its functions, it is
free to act according to its own light. The view it forms and decisions it takes
are on the basis of the information in its possession and the advice it receives
and according to its own perspective and calculations. Unless its action is
mala fide, even a wrong decision by it is not open to challenge. It is not for
the Courts or a third party to substitute its decision, however, more prudent,
commercial or businesslike it may, for the decision of the Corporation. As was
observed by this Court in U.P. Financial Corporation and others vs. Naini Oxygen
and Acetylene Gas Limited and another 1995 (2) SCC 754, commercial matters the
Courts should not risk their judgments for the judgments of the bodies to whom
that task is assigned…….
14.Useful reference could be made to a decision of this Court made in W.P.
No. 11021 of 2010 dated 20.07.2010 in respect of the award of distributorship by
the Indian Oil Corporation Limited wherein this Court held that in writ
jurisdiction under Article 226 of the Constitution of India, this Court cannot
sit in appeal over the selection of a candidate made by the corporation for
grant of award of retail outlet. If the selection process is vitiated by
arbitrary or irrational exercise of power or by malafide or based on no material
error or by ignoring relevant factors including eligibility, the writ Court, on
proof of such relevant facts, may grant the appropriate relief. However, it is
not for the writ Court to dwell deep into the records of the corporation and
examine the validity of rival claims upon appreciation afresh of the materials
on such record and on the basis of such re appraisal to decide whether the
selection was properly made and to give effect to such decision by the issue of
a writ. In para-18, it was held as follows:-
“18. In the case on hand, the Distributor selection committee/authority,
which is vested with the function of selection of dealers, is an independent
entity. The said committee, after considering the materials on record and the
personal assessment on merits, business ability, capacity etc., of the
applicants, has selected third respondent for grant of distributorship and
issued the Letter of Indent dated 05.04.2010, following the disqualification of
the petitioner. The process of appreciating and weighing various factors,
materials and rival merits is the function of the Distributor Selection
Committee, which is having necessary expertise to perform its duties properly.
Therefore, in my view, there cannot be any re-appreciation or re-appraisal of
relevant material factors, relative qualifications and evaluation of the
comparative merits of the candidates in a writ proceedings under Article 226 of
The Constitution of India. As such, the proceedings of the first respondent,
impugned herein, cannot be faulted with.”
15.The petitioner has not even applied, if at all, she is aggrieved, she
could have availed this opportunity. But in this case, she has not even applied
without even application, the writ petition itself is not maintainable. Hence,
the writ petition is dismissed. No costs. Consequently, connected miscellaneous
petitions are closed.
sms
To
1.The Hindustan Petroleum Corporation Ltd.,
Rep. By its General Manager,
South Zone, Thalamuthu Natarajan Building,
4th Floor, Gandhi Irwin Road,
Egmore,
Chennai-600 008.
2.The Hindustan Petroleum Corporation Ltd.,
Madurai Retail Regional Office,
Rakesh Towers, Plot No.5,
S.S.Colony 5th Street,
Bye Pass Road, Madurai.