Padmavathi Filling Station, Indian Oil Dealer Vs. Indian Oil Corporation Ltd. and ors. - Court Judgment

Excerpt:
- cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - the respondents have failed to take into consideration the distant factor and also the fact that there is already a filling station in the said village. 5. in the counter-affidavit, it is clearly explained that the retail outlet belonging to bharat petroleum corporation is situated at a distance of 13 kms.orderb. sudershan reddy, j.1. the petitioner in the instant writ petition prays for issuance of a writ, particularly one in the nature of writ of mandamus declaring the action of the respondents in issuing the notification published in hindu daily newspaper dated 31-12-1997 pertaining to sl.no. 12 of gajulamandyam calling applications for a second petroleum filling station, as illegal, arbitrary, unjust and being violative of articles 14 and 21 of the constitution of india.2. the petitioner is running one of the retail outlets of the respondent-corporation at gajulamandyam of chittoor district and authorised to sell petrol and high-speed diesel. an agreement is stated to have been entered between the petitioner and the respondents on 3-8-1994.3. it is the case of the petitioner that gajulamandyam village is a rural area and the village consists of population of around 3,200. the capacity of the area to have consumption of the petroleum products is very limited. admittedly, the filling station is located just adjacent to tiruttani-tirupathi road near gajulamandyam village. it is the case of the petitioner that in the nearby area there is a petroleum filling station of the bharat petroleum under the name and style of srinivas modaliar and sons. the distance between the said filling station and that of the petitioner is about just 14 kms. it is also stated that near renigunta there is another petroleum filling station of hindustan petroleum and indian oil corporation at a distance of 5 kms.4. the petitioner is aggrieved by the action of the respondent-corporation in issuing notification published in hindu daily newspaper on 3-2-1997 calling for applications of lpg distributors and retail outlet dealers for establishing another outlet at gajulamandyam village. it is the case of the petitioner that the notification issued by the respondent-corporation is contrary to the norms and guidelines issued by the corporation from time to time. the respondents have failed to take into consideration the distant factor and also the fact that there is already a filling station in the said village.5. in the counter-affidavit, it is clearly explained that the retail outlet belonging to bharat petroleum corporation is situated at a distance of 13 kms., from the petitioner's outlet, towards madras. it is also stated that on tirupathi-nellore state highway, at a distance of about 9 kms., from the petitioner's retail outlet, two outlets are existing, one belonging to indian oil corporation and the other belonging to hindustan petroleum corporation. the petitioner's retail outlet is situated on a state highway and not in a rural area. this is an important aspect of the matter required to be noticed by the court. it is also submitted that gajulamandyam is an industrial area and not a rural area as contended by the petitioner. it is stated that the monthly average sales of all the four outlets including the petitioner for the year 1997-98 is 808 kilolitres and the petitioner's outlet alone sold about 254 kls. on an average per month during the year 1997-98.6. it is explained that according to the norms for opening of outlets, known as the volume/distance norms, no outlet should be opened within 15 kms. along the highway from an existing outlet unless the average output of the outlet is over 80 kls. per month. in the instant case, the petitioner's outlet output itself is more than 80 kls. per month. it is under these circumstances the respondent-corporation felt it necessary and desirable to open another outlet near the petitioner's outlet and accordingly issued notification calling for the applications from the interested parties.7. it is further explained that the distance is not the criterion for opening a new retail outlet and the relevant norm governing the same is as follows:'extraction from volume/distance norms for setting up of retail outlet:ii norms in vogue (ref mop's letter no. p-19011/18/79 ipc dated 4-8-1990). no outlet should be opened within 15 kms along the 'highways' from the existing outlet unless the average combined output per outlet located on the highway within 15 kms. is over 80 kls. per month.' 8. it is thus clear from the averments made in the counter-affidavit that the respondent-corporation had not violated any norms whatsoever.9. there is absolutely no reason to disbelieve the averments made in the counter-affidavit that the petitioner did an average sale of 254 kls. per month, during the year 1997-98 and that too during off-season of the sugar mills. in my considered opinion, the writ petition is totally misconceived. the petitioner has no right to monopolise the business in that particular area. there is no such right conferred upon him either by the corporation or by any provision of law for the time being in force.10. this court in w.p. no. 3893 of 1996 dated 8-7-1998 held that a dealer of a filling station has no locus to question the notification issued by the corporation inviting applications from interested parries for the purpose of establishing another outlet. while holding so, this court relied upon a judgment of the supreme court in jasbhai motibtwi desai v. roshan kumar, air 1976 sc 578. i do not find any reason whatsoever to take a different view than the one taken by this court in the above writ petition.11. further, in w.p. no. 18310 of 1996 dated 2-9-1996, this court observed that no relief under article 226 of the constitution of india is available in a situation of this nature. it is observed by this court that even if the respondent-corporation violated the norms, no writ as such would lie since they are non-statutory in character and are mere guidelines to be observed by the oil companies and 'do not confer any statutory or legally enforceable rights in favour of the licensees such as the petitioner'. similar is the view taken by this court in w.p. no. 21384 of 1999 dated 15-11-1999, in which this court observed 'the licensing authority can in the plenitude of its discretion consider the prescriptions fairly and rationally. no writ under article 226 of the constitution can issue directing exercise of such discretion conferred on the licensing authority in a particular manner. such an exercise would be outside the ambit of article 226'. while holding so, this court relied upon the judgment of the supreme court in j. raghupathi v. state of a.p., : 1988(38)elt225(sc) .12. for all the aforesaid reasons, i do not find any merit whatsoever in this writ petition. suffice it to hold, that the respondents while inviting the applications from the eligible and interested candidates have not committed any irregularity or illegality as such. no legally enforceable right of the petitioner is infringed by the impugned notification.13. writ petition fails and shall accordingly stand dismissed. consequently, the interim order earlier granted by this court shall accordingly stand vacated. no order as to costs.

Judgment:
ORDER

B. Sudershan Reddy, J.

1. The petitioner in the instant writ petition prays for issuance of a writ, particularly one in the nature of Writ of Mandamus declaring the action of the respondents in issuing the notification published in Hindu daily newspaper dated 31-12-1997 pertaining to Sl.No. 12 of Gajulamandyam calling applications for a second petroleum filling station, as illegal, arbitrary, unjust and being violative of Articles 14 and 21 of the Constitution of India.

2. The petitioner is running one of the retail outlets of the respondent-Corporation at Gajulamandyam of Chittoor District and authorised to sell petrol and high-speed diesel. An agreement is stated to have been entered between the petitioner and the respondents on 3-8-1994.

3. It is the case of the petitioner that Gajulamandyam village is a rural area and the village consists of population of around 3,200. The capacity of the area to have consumption of the petroleum products is very limited. Admittedly, the filling station is located just adjacent to Tiruttani-Tirupathi Road near Gajulamandyam village. It is the case of the petitioner that in the nearby area there is a petroleum filling station of the Bharat Petroleum under the name and style of Srinivas Modaliar and Sons. The distance between the said filling station and that of the petitioner is about just 14 Kms. It is also stated that near Renigunta there is another Petroleum filling station of Hindustan Petroleum and Indian Oil Corporation at a distance of 5 Kms.

4. The petitioner is aggrieved by the action of the respondent-Corporation in issuing notification published in Hindu daily newspaper on 3-2-1997 calling for applications of LPG Distributors and Retail Outlet Dealers for establishing another outlet at Gajulamandyam village. It is the case of the petitioner that the notification issued by the respondent-Corporation is contrary to the norms and guidelines issued by the Corporation from time to time. The respondents have failed to take into consideration the distant factor and also the fact that there is already a filling station in the said village.

5. In the counter-affidavit, it is clearly explained that the retail outlet belonging to Bharat Petroleum Corporation is situated at a distance of 13 Kms., from the petitioner's outlet, towards Madras. It is also stated that on Tirupathi-Nellore State Highway, at a distance of about 9 Kms., from the petitioner's retail outlet, two outlets are existing, one belonging to Indian Oil Corporation and the other belonging to Hindustan Petroleum Corporation. The petitioner's retail outlet is situated on a State Highway and not in a rural area. This is an important aspect of the matter required to be noticed by the Court. It is also submitted that Gajulamandyam is an industrial area and not a rural area as contended by the petitioner. It is stated that the monthly average sales of all the four outlets including the petitioner for the year 1997-98 is 808 kilolitres and the petitioner's outlet alone sold about 254 KLs. on an average per month during the year 1997-98.

6. It is explained that according to the norms for opening of outlets, known as the Volume/Distance norms, no outlet should be opened within 15 Kms. along the Highway from an existing outlet unless the average output of the outlet is over 80 KLs. per month. In the instant case, the petitioner's outlet output itself is more than 80 KLs. per month. It is under these circumstances the respondent-Corporation felt it necessary and desirable to open another outlet near the petitioner's outlet and accordingly issued notification calling for the applications from the interested parties.

7. It is further explained that the distance is not the criterion for opening a new retail outlet and the relevant norm governing the same is as follows:

'Extraction from Volume/Distance Norms for setting up of Retail Outlet:II Norms in vogue (Ref MOP's letter No. P-19011/18/79 IPC dated 4-8-1990). No outlet should be opened within 15 KMs along the 'Highways' from the existing outlet unless the average combined output per outlet located on the Highway within 15 KMs. is over 80 KLs. per month.'

8. It is thus clear from the averments made in the counter-affidavit that the respondent-Corporation had not violated any norms whatsoever.

9. There is absolutely no reason to disbelieve the averments made in the counter-affidavit that the petitioner did an average sale of 254 KLs. per month, during the year 1997-98 and that too during off-season of the sugar mills. In my considered opinion, the writ petition is totally misconceived. The petitioner has no right to monopolise the business in that particular area. There is no such right conferred upon him either by the Corporation or by any provision of law for the time being in force.

10. This Court in W.P. No. 3893 of 1996 dated 8-7-1998 held that a dealer of a filling station has no locus to question the notification issued by the Corporation inviting applications from interested parries for the purpose of establishing another outlet. While holding so, this Court relied upon a judgment of the Supreme Court in Jasbhai Motibtwi Desai v. Roshan Kumar, AIR 1976 SC 578. I do not find any reason whatsoever to take a different view than the one taken by this Court in the above writ petition.

11. Further, in W.P. No. 18310 of 1996 dated 2-9-1996, this Court observed that no relief under Article 226 of the Constitution of India is available in a situation of this nature. It is observed by this Court that even if the respondent-Corporation violated the norms, no writ as such would lie since they are non-statutory in character and are mere guidelines to be observed by the Oil Companies and 'do not confer any statutory or legally enforceable rights in favour of the licensees such as the petitioner'. Similar is the view taken by this Court in W.P. No. 21384 of 1999 dated 15-11-1999, in which this Court observed 'the licensing authority can in the plenitude of its discretion consider the prescriptions fairly and rationally. No writ under Article 226 of the Constitution can issue directing exercise of such discretion conferred on the Licensing Authority in a particular manner. Such an exercise would be outside the ambit of Article 226'. While holding so, this Court relied upon the judgment of the Supreme Court in J. Raghupathi v. State of A.P., : 1988(38)ELT225(SC) .

12. For all the aforesaid reasons, I do not find any merit whatsoever in this writ petition. Suffice it to hold, that the respondents while inviting the applications from the eligible and interested candidates have not committed any irregularity or illegality as such. No legally enforceable right of the petitioner is infringed by the impugned notification.

13. Writ petition fails and shall accordingly stand dismissed. Consequently, the interim order earlier granted by this Court shall accordingly stand vacated. No order as to costs.