Dismissed

Sheena Prakash v. Union of India

Kerala HC16 Aug 2013WA/1169/2013

Case brief

AI extract

What is this about?

This writ appeal challenged the establishment of new petroleum outlets by Oil Marketing Companies near the appellant's dealership, alleging arbitrariness and violation of fundamental rights. The Division Bench dismissed the appeal, relying on the Supreme Court's reversal of the prior Basheer M.M. precedent and affirmation of the Mary Ulahannan principle.

What did the court decide?

Appeal dismissed with no costs.

Sheena Prakash Vs Union of India — Service and Employment | Kerala HC (2013)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:-

¶3

THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR &

¶4

THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

¶5

FRIDAY, THE 16TH DAY OF AUGUST 2013/25TH SRAVANA, 1935

¶6

W.A.No.1169 of 2013

¶7

AGAINST THE JUDGMENT IN W.P.(C).No.17013/2012-B, DATED 12-04-2013 OF HIGH COURT OF KERALA.

¶8

APPELLANT/ PETITIONER:-

¶9

SHEENA PRAKASH,

¶10

M/S.CHETTUVA FUELS, HPCL DEALER, KUNDALIYUR.P.O., THRISSUR - 680 616.

¶11

BY ADVS.SRI.P.B.SAHASRANAMAN SRI.T.S.HARIKUMAR

¶12

SRI.K.JAGADEESH.

¶13

RESPONDENTS/ RESPONDENTS:-

¶14

UNION OF INDIA, REPRESENTED BY SECRETARY, MINISTRY OF PETROLEUM AND NATURAL GAS, SASTHRI BHAVAN, NEW DELHI - 110 001.

¶15

THE DISTRICT COLLECTOR, COLLECTORATE, AYYANTHOLE, THRISSUR - 680 003.

¶16

HINDUSTAN PETROLEUM CORPORATION LTD., KOZHIKODE RETAIL REGION, ELATHUR, KOZHIKODE - 673 003, REPRESENTED BY ITS AREA SALES MANAGER.

¶17

BHARATH PETROLEUM CORPORATION LTD., IRUMPANAM INSTALLATION, KOCHI - 682 309, REPRESENTED BY ITS TERRITORY MANAGER (RETAIL).

¶18

INDIAN OIL CORPORATION LTD., KOCHI DIVISIONAL OFFICE, PANAMPILLY AVENUE, PANAMPILLY NAGAR, KOCHI - 682 036,

¶19

REPRESENTED BY ITS AREA SALES MANAGER.

¶20

W.A.NO.1169 OF 2013

¶21

- 2 -

¶22

STATE OF KERALA, REPRESENTED BY ITS SECRETARY, FOOD AND CIVIL SUPPLIES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

¶23

PETROLEUM AND NATURAL GAS REGULATORY BOARD (P.N.G.R.B), IST FLOOR, WORLD TRADE CENTRE, BABAR ROAD, NEW DELHI - 110 001.

¶24

K.M.THILAKAN, S/O.MADHAVAN, KURUPATH HOUSE, KADAPURAM.P.O., THRISSUR DISTRICT.

¶25

R1 & R7 BY SRI.P.PARAMESWARAN NAIR, ASG OF INDIA. R2 & R6 BY SENIOR GOVERNMENT PLEADER SRI.P.I.DAVIS. R3 & R4 BY ADV.SRI.M.GOPIKRISHNAN NAMBIAR R5 BY STANDING COUNSEL SRI.C.S.DIAS. R8 BY ADV.SRI.R.K.MURALEEDHARAN.

¶26

THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 16-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:-

¶27

Manjula Chellur, C.J. & K.Vinod Chandran, J.

¶28

W.A.No.1169 of 2013

¶29

Dated this, the 16^th day of August, 2013

¶30

JUDGMENT

¶31

K.Vinod Chandran,J.

¶32

The appellant is a retail dealer of petroleum, running a petroleum outlet (Marine) under the 3^rd respondent, Hindustan Petroleum Corporation Ltd. The appellant, aggrieved by the action of the Bharath Petroleum Corporation Limited and the Indian Oil Corporation Ltd., respondents 4 and 5 respectively, in notifying establishment of new outlets near to that of the appellant, was before the learned Single Judge. The appellant's contention was that the Oil Marketing Companies (OMCs) in the public sector are regulated by guidelines in the matter of opening of retail petroleum outlets and resorting to action resulting in mushrooming of retail outlets in violation of the guidelines as also without any reference to the market conditions and demand with respect to an area; is arbitrary and illegal and violates the fundamental rights of the appellant to engage in trade and business. The appellant also contended that the matter is covered by the decision of this Court

¶33

¶34

W.A.No.1169 of 2013

¶35

reported in Basheer M.M. and Another v. State of Kerala and Others [2011 (4) KHC 285 (DB)].

¶36

We have to immediately notice that the decision in

¶37

Basheer's case ( supra ) was overturned in Civil Appeal Nos.2784/2013 to 2792/2013 by the Hon'ble Supreme Court through an order dated 2.4.2013. The order of the Hon'ble

¶38

Supreme Court, as extracted by the learned Single Judge, is extracted hereunder:

¶39

“We have heard learned senior counsel and learned counsel for the parties.

¶40

Leave granted.

¶41

We find no justification for the Division Bench to upturn the judgment and order of the single Judge dismissing the Writ Petition. Accordingly, the impugned judgment is set aside. However, it is observed that the guidelines framed by the High Court may be kept in view by the Central Government if there is need to frame guidelines with regard to establishment of retail outlets of the oil marketing companies.

¶42

Appeals are allowed with no order as to costs”.

¶43

The above order of the Supreme Court definitely indicates that the

¶44

Division Bench judgment of this Court was set aside and the

¶45

¶46

W.A.No.1169 of 2013

¶47

judgment and order of the learned Single Judge was upheld by the Hon'ble Supreme Court.

¶48

The decision of the learned Single Judge, approved by the Supreme Court, is reported in Mary Ulahannan v. Union of India [2011 (3) KLT 570]. In Mary Ulahannan ( supra ), it was found that the grant of retail outlet based on the issuance of a No Objection Certificate issued by the Central Government cannot at all be watered down by the State Government or by any of the authorities under the State. The Parliament in its legislative wisdom having not found it necessary to impose any restrictions or conditions in the grant of retail outlets and also no restriction as to the opening of retail outlets within a specified distance or based on the quantum of sales not being evident from the rules, there cannot be any further restriction provided in the nature of guidelines issued by the State or its authorities. The learned Single Judge had declined jurisdiction on the question of locus standi , finding that the existing licensees of outlets cannot be heard to challenge the allotment of new outlets. The decision of the learned

¶49

Single Judge having been upheld by the Supreme Court, that too in a Civil Appeal, we are of the opinion that the matter is no longer res integra .

¶50

¶51

W.A.No.1169 of 2013

¶52

The further contention advanced by the appellant

¶53

and other similarly situated persons that the grant of new outlets were against the circular issued by the Union Government itself, dated 6.4.2011 and produced as Exhibit P5, was also negatived by

¶54

the learned Single Judge on the submission of the respondent-OMCs that the same is no more in force.

¶55

In the light of the binding precedent, we are of the opinion that the learned Single Judge was perfectly right in declining the reliefs; holding the writ petition as devoid of merit. We dismiss the appeal, however, with no costs.

¶56

Sd/Manjula Chellur, Chief Justice

¶57

Sd/-

¶58

vku/-

¶59

K.Vinod Chandran, Judge. ( true copy )

Sheena Prakash v. Union of India

Case brief

What is this about?

What did the court decide?

Sheena Prakash v. Union of India

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

C.Lovidasan Vs Sasidharan

Puthucode Juma-Ath Committee Vs S. Muhammed Hussain

Thomas K.L. Vs State of Kerala

Vizhinjam International Sea Port Limited Vs G.R. Gopakumar

Mahadevan Nair P.K. Vs State of Kerala

P.K.Mahadevan Nair Vs State of Kerala