Firose N.P. v Indian Oil Corporation Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** ## **WEDNESDAY, THE 6TH DAY OF NOVEMBER 2013/15TH KARTHIKA, 1935** **WP(C).No. 24582 of 2012 (W) -------------------------------------------** **PETITIONER(S):** **----------------------** **FIROSE N.P., AGED 28 YEARS, S/O. P.ALI, FIROSE MANZIL, P.O. VILAKKODE, VIA. IRITTY, KANNUR-670703.** **BY ADVS.SRI.M.RAMESH CHANDER SRI.ANEESH JOSEPH** **RESPONDENT(S):** - **-------------------------** **1. INDIAN OIL CORPORATION LTD., PANAMPILLY AVENUE, PANAMPILLY NAGAR, KOCHI-682036, REPRESENTED BY ITS CHIEF AREA MANAGER.** **2. THE CHIEF MANAGER (LPG-O)/DEPUTY GENERAL MANAGER (LPG), INDIAN OIL CORPORATION LTD., PANAMPILLY AVENUE, PANAMPILLY NAGAR, KOCHI-682036.** **3. K.K.RAMACHANDRAN, PREETHAM, PERAVOOR, KANNUR DISTRICT-670673.** ## **R1 & R2 BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR** **SRI.P.GOPINATH SRI.P.BENNY THOMAS SRI.K.JOHN MATHAI R3 BY ADV. SRI.C.K.SREEJITH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **vs** ## **WP(C).No. 24582 of 2012 (W)** ## **-----------------------------------------** ## **APPENDIX ---------------** ## **PETITIONER'S EXHIBITS** ## **-----------------------------------** - **P1. TRUE COPY OF THE MARKS AWARDED TO EACH OF THE CANDIDATES.** - **P2. THE PHOTOSTAT COPY OF THE APPLICATIONS SUBMITTED BY THE 3RD RESPONDENT FOR LPG DISTRIBUTORSHIP.** - **P3. TRUE COPY OF THE SAID POSSESSION CERTIFICATE.** - **P4. THE PHOTOSTAT COPY OF THE DOCUMENT EXECUTED IN FAVOUR OF THE 3RD RESPONDENT BY THE ASSIGNOR DATED 28.9.2012.** - **P5. THE PHOTOSTAT COPY OF THE BROCHURE.** - **P6. TRUE COPY OF THE REPLY GIVEN BY THE 1ST RESPONDENT DATED 3.4.2013.** ## **RESPONDENTS EXHIBITS** - **-------------------------------------** - **R1(A). TRUE COPY OF THE LETTER OF INTENT DATED 9.6.2010 ISSUED TO THE 3RD RESPONDENT BY THE DEPONENT.** - **R1(b). TRUE COPY OF the LETTER DATED 28.6.2010 FROM THE DEPONENT TO THE 3RD RESPONDENT.** - **R1(C). TRUE COPY OF THE JUDGMENT DATED 21.5.2012 IN WP(C)3343 OF 2010 OF THIS HON'BLE COURT.** - **R1(d). TRUE COPY OF THE LETTER DATED 5.6.2012 FROM THE DEPONENT TO THE 3RD RESPONDENT.** - **R1(e). TRUE COPY OF THE INDUSTRY RECORED NOTE DATED 14.11.2011.** - **R1(f). TRUE COPY OF THE LETTER DATED 5.11.2012 FROM THE DEPONENT TO THE 3RD RESPONDENT.** ## **// TRUE COPY //** ## **P.S. TO JUDGE** **vs** ## **P.R. RAMACHANDRA MENON J.** ~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C) No. 24582 of 2012 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 6[th] day of November, 2013 ## **JUDGMENT** The petitioner is seeking for allotment of LPG Distributorship and has submitted necessary application in this regard, producing relevant documents, pursuant to the notification issued by the respondent Corporation. The selection was finalized, based on the credentials of the participants as borne by Ext. P1. Challenge is with regard to the undue advantage given to the third respondent, in so far as the property offered by the said respondent, as shown in the application, was not the one considered for allotting the marks, as the respondent Corporation permitted the 3[rd] respondent to substitute the property, which is contrary to Clause 9 of the Brochure issued by the respondent Corporation in this regard. Hence the challenge. 2. The third respondent has filed a counter affidavit, explaining the facts and circumstances under which the property was permitted to be substituted, as discernible from Ext. R1(f) communication issued by the respondent Corporation addressing to the third respondent, in view of change in Kerala Building Rules. _W.P.(C) No. 24582 of 2012_ : 2 : 3. The petitioner has filed reply affidavit as well. The learned counsel for the petitioner points out that Clause 9 of the Brochure is quite categoric to the effect that the applicant will not be given any opportunity to change the land already offered for construction of the go-down. This being the position, the request made by the 3[rd] respondent to change the plot ought not to have been considered and entertained by the respondent Corporation. The learned counsel for the petitioner contends that, by virtue of the proven credentials of the petitioner, as discernible from the Ext. P1, the petitioner ought to have been selected in place of respondent No.3. 4. The learned standing counsel for the respondent Corporation submits that there is no dispute with regard to Clause 9 incorporated in the Brochure and the said clause is intended to see that the party is not given any advantage to change the plot later, after submitting necessary application giving particulars of the concerned plot. But in the instant case, the facts and circumstances stand on a different footing, since the relevant Rules i.e the Kerala Building Rules has under gone substantial change after receipt of the applications with respect to construction of the _W.P.(C) No. 24582 of 2012_ : 3 : LPG godown, whereby a minimum distance of 10 mts. was required to be maintained between the boundary wall and the godown. As such, the petitioner was not in a position to construct the godown in the land already proposed/furnished by him. It was in the said circumstances, that the 3[rd] respondent was allowed to change the plot, vide Ext. R1 (f) communication. The learned counsel also points out that, in an exactly similar circumstances, the Andhra Pradesh High Court in W.P.(C) No. 1848 of 2010, directed the Indian Oil Corporation to permit the petitioner therein to start LPG godown in the plot mentioned other than in the application form. It is also brought to the notice that, this Court has also followed similar course, vide judgment dated 18.06.2013 in W.P(C) No. 21020 of 2013, directing the IOC to consider the claim preferred by the petitioner therein to start LPG storage godown in the alternate plot, in the light of the decision rendered by Andhra Pradesh High Court as mentioned above. The learned counsel submits that the matter involved in this case was also considered in the light of the decisions as above. 5. The factual position as to the change in circumstances is discernible from paragraphs 7 and 8, which read as follows : _W.P.(C) No. 24582 of 2012_ : 4 : “7. A letter dated 5.6.2012 was issued to the 3rd respondent by the deponent informing that the LOI dated 9.6.2010 is reinstated as the stay in W.P.(C) 3343 of 2010 stands vacated. The 3[rd] respondent was requested to complete the formalities to start the distributorship as soon as possible. A true copy of the letter dated 5.6.2012 from the deponent to the 3rd respondent is produced herewith and marked **Exhibit R1(d).** 8. As per the brochure and guidelines for selection, the candidate was required to build the godown in the site which is shown in the application form. However, the statutory requirement as per Building Rules of Kerala changed after the due date of application. The new rule stipulated that there should be a minimum distance of 10 meters between storage shed and boundary wall/fencing. As a result of this change in rules a godown could no longer be constructed on the land offered by the 3[rd] respondent in his application for the godown. The learned standing counsel further submits that by virtue of operation of law as aforesaid, it is no more possible to have constructed the godown in the originally proposed property. This made the respondent Corporation to issue Ext. R1(f) ## _W.P.(C) No. 24582 of 2012_ : 5 : communication to the third respondent, granting permission to effect the construction in the concerned plot. Reference is also made to Ext. R1 (e) Industry Record Note dated 14.11.2011, which reads as follows : ## INDUSTRY RECORD NOTE Permission for construction of LPG Godown/showroom at the land other than mentioned in the application. 1. High Court of Judicature, Andhra Pradesh at Hyderabad has passed an order in Writ Petition No. 1848 of 2010 directing IOC to permit petitioner to establish the LPG godown upon the land other than mentioned in the application on the ground that subsequent to the date of application Govt. of Andhra Pradesh has issued notification by which permission for construction of godown cannot be accorded for the land mentioned in the application. 2. Considering that there was no misrepresentation in the application and the notification was also subsequent to date of application implying thereby that as on the date of application, the land mentioned was suitable for construction of LPG godown and also Honourable High Court, Andhra Pradesh had directed IOC to grant permission, the selected candidate was allowed to construct the godown at the land other than mentioned _W.P.(C) No. 24582 of 2012_ : 6 : in the application. 3. In order to have uniformity across the industry, it is agreed by the industry that in case the land mentioned in the application is subsequently notified (i.e after date of application) for acquisition or statutory restrictions are imposed, then the candidate can be allowed to arrange for an alternate plot of land. 4. Area Manager/Territory Manager/Regional Manager will inform the selected candidate in writing to arrange alternate suitable plot of land within a period of two months from the date of letter. 5. Area Manager/Territory Manager/Regional Manager shall be the competent authority to approve the construction of LPG godown/showroom at the alternate land. 6. After hearing both the sides, this Court finds that no undue advantage has been extended by the respondent Corporation in favour of the 3[rd] respondent. The petitioner has been awarded maximum marks of '25' with regard to the property offered by him for constructing the godown. This being the position, the petitioner cannot be heard to say that he is aggrieved of the course pursued by the respondent Corporation, more so, when the change in circumstances has been resulted by virtue of _W.P.(C) No. 24582 of 2012_ : 7 : the amendment of the Statute. In the said circumstances, this Court finds that the writ petition is devoid of any merit and it is dismissed accordingly. Sd/- **P. R. RAMACHANDRA MENON, (JUDGE)** kmd