Allowed

Sri S Nithish v. the Indian Oil Corporation Ltd.

Karnataka HC8 Nov 2022WP/3557/2022

Case brief

AI extract

What is this about?

The petitioner sought a writ directing respondents to consider a representation for establishing a retail outlet on alternate land, ignored after initial rejection. Citing a coordinate bench's ruling on similar facts, the court directed respondents to examine the feasibility of the alternate land within eight weeks.

What did the court decide?

Direction to respondents to consider the petitioner's representation dated 17.01.2022 regarding the feasibility of alternate land within eight weeks.

Sri S Nithish Vs the Indian Oil… — Pension and Retirement Benefits | Karnataka HC (2022)

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WP No. 3557 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF NOVEMBER, 2022

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BEFORE

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THE HON'BLE MR JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 3557 OF 2022 (GM-RES)

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BETWEEN:

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SRI S NITHISH S/O SRINIVAS, AGED ABOUT 30 YEARS, R/AT NO.1/23, PAPER TOWN, BHADRAVATHI, SHIVAMOGGA DISTRICT-577302

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…PETITIONER

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(BY SRI. SOMASHEKHARAIAH R.P., ADVOCATE)

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AND:

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Digitally signed by PADMAVATHI B K Location: HIGH COURT OF KARNATAKA

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THE INDIAN OIL CORPORATION LTD MYSURU DIVISIONAL OFFICE, NO.36/A, IST FLOOR, B N ROAD,

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MYSURU TRADE CENTRE, OPP KSRTC BUS STAND, MYSURU-570001

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REPRESENTED BY ITS HEAD OF DIVISIONAL OFFICE

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THE INDIAN OIL CORPORATION LTD MARKETING DIVISION, MYSURU DIVISIONAL OFFICE,

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WP No. 3557 of 2022

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NO.36/A, IST FLOOR, B N ROAD, MYSURU TRADE CENTRE, OPP KSRTC BUS STAND, MYSURU-570001 REPRESENTED BY THE DIVISIONAL MANAGER

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…RESPONDENTS

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(BY SRI. AMBRISH B.N., ADVOCATE FOR SRI. SANTOSH S. NAGARALE, ADVOCATE)

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THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE RESPONDENTS TO CONSIDER THE REPRESENTATION DTD 17.1.2022 FOR ESTABLISHMENT OF RETAIL OUTLET ON MADDUR MALAVALLI MAIN ROAD, NEAR MADDUR IN SURVEY NO.112/1A, GORAVANAHALLI VILLAGE, NEAR MARAKADODDI GATE, MADDUR MALAVALLI MAIN ROAD, MADDUR TALUK, MANDYA DISTRICT AS PER THE ENDORSEMENT ISSUED BY THE RESPONDENT DTD 08.04.2021 UNDER ANNEXURE-M AND H RESPECTIVELY.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:

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WP No. 3557 of 2022

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ORDER

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The petitioner is before this Court seeking for the

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following prayer:

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" i. Issue a writ in the nature of mandamus directing the respondents to consider the representation dated 17.1.2022 for establishment of retail outlet on Maddur Malavalli Main road, near Maddur in survey No.112/1A, Goravanahalli Village, near Marakadoddi Gate, Maddur Malavalli Main road, Maddur Taluk, Mandya District as per the endorsement issued by the respondent dtd.08.04.2021 under Annexure-M and H respectively."

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2. Heard Sri. Somashekharaiah R.P., learned counsel

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appearing for the petitioner and Sri Santosh S. Nagarale, learned counsel appearing for the respondents and have perused the material on record.

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The respondents - Indian Oil Corporation ('Corporation' for short) issues a Notification calling for applications from interested citizens for dealership of establishment of a retail outlet. The petitioner himself finding eligible in terms of the Notification, submits his application on 24.12.2018. One of the condition was that the applicant should have a land in his name either leased or owned. The petitioner submits that the documents pertaining to a particular land

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WP No. 3557 of 2022

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situated in Sy.No.731 at Maddur along with the agreement that he had entered into with the owner of the land.

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The respondents - Corporation directs the petitioner

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to produce all the original records, lease agreement and a consent letter from the owner of the land. It is then the petitioner realised that there was a problem with the lease agreement and submits another lease agreement along with the documents necessary to process the application that he had submitted on 24.12.2018. This comes to be rejected on 08.04.2021 after about 12 days of the submission of the alternate land on the ground that there cannot be a change of the land from what was submitted along with the application.

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The petitioner then knocks the doors of this Court in W.P.No.8575/2021. The writ petition comes to be dismissed. The challenge in the writ petition was to the endorsement that rejected the claim of the petitioner on the ground that there was a change in land. This was tossed by the petitioner before the Division Bench of this Court in W.A.No.1406/2021, which comes to be withdrawn by the petitioner. The liberty also to withdraw was granted reluctantly as is observed by the Division

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WP No. 3557 of 2022

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Bench of this Court. After the dismissal of the challenge to the endorsement, the petitioner now seeks a direction at the hands of this Court to consider a representation submitted for the very purpose that was the subject matter of endorsement dated 08.04.2021. In the light of the dismissal of the earlier case, no direction can be issued to the respondents to consider the case of the petitioner in a particular manner.

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The subsequent development is in identical circumstances, a Co-ordinate Bench of this Court in W.P.No.16/2021 disposed on 11.08.2022 has held as follows:

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"Petitioner an aspiring retail outlet dealer under ST Women category is knocking at the doors of Writ Court for a direction to consider her application for awarding the retail outlet dealership on Besant Park Road at Doddaballapur by issuing an addendum to the Letter of Intent dated 30.06.2016 for incorporating alternate land, the one proposed earlier now not being available.

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2. After service of notice, the first respondent-UOI is represented by its Sr. Panel Counsel; the answering respondents 2 to 6 are represented by their Panel Counsel who opposes the petition mainly contending that the petitioner could have approached the Grievance Redressal Cell availing in the official hierarchy and that the policy then in obtainment did not provide for consideration of applications of the kind in respect of lands other than the ones offered in the very application itself, although the new policy of 2018 would provide for that.

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WP No. 3557 of 2022

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3. Having heard the learned counsel for the parties and having perused the petition papers, this Court is inclined to grant indulgence in the matter as under and for the following reasons:

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(a) Petitioner is a woman belonging to ST category and she had staked her claim for allotment of dealership vide application dated 18.10.2014, is not in dispute; petitioner happens to be the sole applicant for the unit in question, is also not in dispute; the land offered by the petitioner belonged to another person who did not agree to certain terms and therefore petitioner after having an arrangement with another lady had proposed the land to the said lady. The counsel for the petitioner submits and this court has no reason to doubt that the arrangement for having the alternate land at some stage had involved the officials of the answering respondents herein.

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(b) There is force in the submission of learned counsel for the petitioner that the application of the kind cannot be treated as land specific disregarding the difficulties that crop up in the arrangements of the kind and that what is to be seen by the authorities in the changed circumstances is the feasibility of considering the application in respect of alternate land offered; the counter contention of Panel Counsel appearing for the answering respondents that under the new policy of 2018 although there is scope for having the alternate land subject to feasibility, the policy then obtaining earlier did not admit of the proposal for alternate land, is bit difficult to agree with; the policy in question cannot be treated as a statutory instrument having no elements of elasticity; the fact that the new policy allows offering of alternate land, itself would come to the aid of petitioner, no contra intention emanating from 2018 new policy that the pending cases would not be covered by its terms. This court is not very sure whether an argument of nonprospectivity avails to the respondent-authorities to deny relief to the aggrieved citizens in matters like this. After all the bar against retrospectivity enacted under Article 20 of the Constitution is confined to criminal law, and therefore cannot be invoked in matters of this kind. It is pertinent to recall what Lord Denning said : “The rule that an Act of Parliament is not to be given retrospective effect

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WP No. 3557 of 2022

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applies only to statutes which affect vested rights. It does not apply to statutes which only alter the form of procedure or the admissibility of evidence, or the effect which the courts give to evidence” ( BLYTH vs. BLYTH (1966) 1 ALL ER 524 ) .

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(c) What heavens would have fallen down had the proposal for alternate land was considered by the statutory authority in compliance with the 2018 new policy, is not forthcoming despite lengthy arguments submitted on behalf of answering respondents; in construing policies of the kind common sense cannot be kept in cold storage. Ours being a Welfare State, the respondents who happen to be instrumentalities of the State under Article 12, cannot act arbitrarily or unreasonably whilst considering the claim of citizens for the grant of State largesse.

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In the above circumstances, this petition succeeds; a Writ of Mandamus issues to respondents 2 to 6 to consider petitioner’s subject application for awarding retail outlet dealership by examining the feasibility of alternate land proposed by her within a period of eight weeks and in accordance with law; delay if brooked shall be viewed seriously at the next level of litigation and heavy costs may be imposed on the erring official.

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It is open to the answering respondents to solicit any information or documents from the side of the petitioner as are required for due consideration of the application. However, in the guise of such solicitation delay shall not be brooked.

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Now, no costs."

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It is only in the light of the judgment rendered by a Coordinate Bench of this Court on 11.08.2022 in W.P.No.16/2021, I deem it appropriate to direct the respondents to consider the representation of the petitioner dated 17.01.2022 bearing in

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WP No. 3557 of 2022

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mind the observations made by the Co-ordinate Bench of this Court in W.P.No.16/2021.

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The consideration of the representation of the petitioner shall be expeditiously done.

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With the aforesaid observations, the petition stands disposed.

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Sd/JUDGE

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SJK List No.: 1 Sl No.: 4

Sri S Nithish v. the Indian Oil Corporation Ltd.

Case brief

What is this about?

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Sri S Nithish v. the Indian Oil Corporation Ltd.

Case brief

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