WP(C) Nos. 34439/2019 & 15424/2020 (K. Ashraf and others vs Bharat Petroleum Corporation Limited and others; R. Haridas vs Union of India and others)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** ## **&** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY, THE 14[TH] DAY OF FEBRUARY 2022 / 25TH MAGHA, 1943** ## **WP(C) NO. 34439 OF 2019** ## **PETITIONERS:** |**1**|**K. ASHRAF, AGED 44 YEARS,**| |---|---| ||**S/O. KOYAKUTTY, NATTAMPARAMBIL,**| ||**ERUVA P.O., KAYAMKULAM.**| |**2**|**SABU, S/O. UMMERKUTTY,**| ||**PUTHAYYATH VEEDU, , ERUVA P.O., KAYAMKULAM.**| |**3**|**VIJAYA MOHANAN B.,**| ||**S/O. BALAKRISHNA PILLI, KOMBINATHU HOUSE,**| ||**ERUVA P.O., KAYAMKULAM.**| |**4**|**RAJAN PILLAI, S/O. RAMACHANPILLI P.,**| ||**KOPPARAGIL, PARIGALA P.O., KAYAMKULAM.**| |**5**|**BABU C., S/O. CHALLAPPAN K.,**| ||**ELAMSHERIL, THARAYIL, PATHIYOOR P.O.,**| ||**KAYAMKULAM.**| |**6**|**BIJU K., S/O. KRISHNAN,**| ||**MUNDIYIL KIZHAKKATHIL, PATHIYOOR P.O.,**| ||**KAYAMKULAM.**| |**7**|**ABDUL MANAF, S/O. POOKUNJU,**| ||**KALEEKKAL THEKKATHIL, KANAMPALLY BHAGOM,**| ||**KAYAMKULAM.**| |**8**|**BASHEER KUTTY,**| ||**S/O. SHAHUL HAMEED,**| ||**ELAMPADATH CHERAVALLY P.O.,**| ||**KAYAMKULAM.**| |**9**|**A. MURALEEDHARAN,**| ||**S/O. ANANDAN, PUTHAN PURA KIZHAKATHIL,**| ||**PERIGALA P.O.**| |**10**|**KUNJUMON, S/O. HYDAROOS KUNJU,**| ||**MODHIRKUNNEL, CHERAVALLY P.O.,**| ||**KAYAMKULAM.**| WP(C)s: 34439/19 & 15424/20 -:2:- - **11 ABDUL SALAM, S/O. HAMEED KUTTY, KAPPAKASHERIL, KAYAMKULAM P.O., KAYAMKULAM.** - **12 ABDUL SHUKOOR, S/O. EBRAHIM KUTTY, KALAVALILL, PARIGALA P.O., KAYAMKULAM.** - **13 HUSSAIN, S/O. ABDUL RASAK, PLAMKOOTTIL THARAYIL, PERIGALA P.O., KAYAMKULAM.** - **14 NIZAMUDEEN, S/O. EBRAHIM KUTTY, VELITHARAYIL, KAYAMKULAM P.O., KAYAMKULAM.** - **15 ASHARAF T., S/O. THAGAL KUNJU, KALATHIL, CHERAVALLY MORUKUMOOD, KAYAMKULAM.** - **BY ADVS. SRI. J.OM PRAKASH SRI.T.G.SUNIL (PRANAVAM) SRI.C.X.ANTONY BENEDICT SRI.T.G.MANOJ SRI.T.G.SANTHOSH SRI.T.G.MAHESH** ## **RESPONDENTS:** - **1 THE BHARAT PETROLEUM CORPORATION LIMITED (BPCL), KOCHI LPG TERRITORY, BPCL, AMBALAMUGAL, ERNAKULAM, PIN-682302, REPRESENTED BY GENERAL MANAGER.** - **2 THE ASSISTANT MANAGER (LPG), LPG-KOTTAYAM TRIVANDRUM LPG TERRITORY, THE BHARAT PETROLEUM CORPORATION LIMITED, KOTTAYAM P.O., PIN-686001.** - **3 THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, DEPARTMENT OF FOOD AND CIVIL SUPPLIES, GOVERNMENT SECRETARIAT, THIRUVANANTHAURAM-695001.** - **4 THE KERALA STATE CIVIL SUPPLIES CORPORATION LIMITED (SUPPLYCO), REPRESENTED BY ITS MANAGING DIRECTOR, CORPORATE OFFICE, PANAMPILLY NAGAR, ERNAKULAM-682020.** - **5 THE MANAGER (SPECIAL BUSINESS), SUPPLYCO HEAD OFFICE, ERNAKULAM-682020.** WP(C)s: 34439/19 & 15424/20 -:3:- - **6 THE OFFICER IN CHARGE, SUPPLYCO LPG GAS OUTLET, OPPOSITE TO MSN COLLEGE, SHAN BUILDING, KAYAMKULAM P.O., ALAPPUZHA-690502.** - **7 SRI. UNNIKRISHNA PILLAI, AGED 66 YEARS, S/O. KRISHNA PILLAI, PROPRIETOR, M/S. BPR BHARAT GAS, OACHIRA P.O., KOLLAM-690526.** **R1 BY ADVS. SRI. M. GOPIKRISHNAN NAMBIAR SRI. K.JOHN MATHAI SRI. JOSON MANAVALAN SRI. KURYAN THOMAS SRI. PAULOSE C. ABRAHAM SRI. RAJA KANNAN** **R4 BY ADV. SMT. MOLLY JACOB, SC, SUPPLYCO** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.02.2022, ALONG WITH W.P.(C) NO.15424/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C)s: 34439/19 & 15424/20 -:4:- **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY, THE 14[TH] DAY OF FEBRUARY 2022 / 25TH MAGHA, 1943** **WP(C) NO. 15424 OF 2020** **PETITIONER:** **R. HARIDAS, AGED 60 YEARS, S/O. C. V. RAJAPPAN, INDEEVARAM, VARANADU.P.O., CHERTHALA, ALAPPUZHA-688 543.** **BY ADVS. SRI. P.V.JAYACHANDRAN SRI. NIDHI BALACHANDRAN** ## **RESPONDENTS:** **1 THE UNION OF INDIA, REPRESENTED BY ITS PRINCIPAL SECRETARY TO MINISTRY OF PETROLEUM AND NATURAL GAS, SHASHTRI BHAVAN, NEW DELHI-110 001.** **2 CGM (SALES) LPG, BHARATH PETROLEUM CORPORATION LTD., BHARATH BHAVAN, CURRIBHOY ROAD, BALLARAD ESTATE, MUMBAI-400001.** **3 BHARATH PETROLEUM CORPORATION LTD., THIRUVANANTHAPURAM TERRITORY, LPG, KAZHAKOOTTAM, REPRESENTED BY ITS TERRITORY MANAGER-695 582. 4 XAVIER J. PONNEZHATH NEAR VALAYALAR JUNCTION, PATTANAKKAD P.O., CHERTHALA, ALAPPUZHA-688 531. R1 BY ADV. SRI. M. N. MANMADAN, CGC R3 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI.PAULOSE C. ABRAHAM SRI. NIRMAL.S R4 BY ADVS. SRI. NIRMAL.S SMT. VEENA HARI** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.02.2022, ALONG WITH W.P.(C) NO.34439/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C)s: 34439/19 & 15424/20 -:5:- ## **J U D G M E N T** ## **S. Manikumar, CJ** Instant writ petitions are filed challenging the decision of Bharat Petroleum Corporation Limited (BPCL), regarding porting/transfer of existing gas connection from one agency to another, without the consent of the dealers or customers. 2. W.P.(C) No.34439 of 2019 is filed by the delivery boys of Liquefied Petroleum Gas (LPG) Outlet conducted by the Kerala State Civil Supplies Corporation Limited (Supply-co), represented by its Managing Director, Corporate Office, Ernakulam, 4[th] respondent, praying to quash Exhibit-P5 communication issued by the Assistant Manager (LPG), LPG-Kottayam, Trivandrum LPG Territory, Bharat Petroleum Corporation Ltd., Kottayam, 2[nd] respondent, intimating the Officer in Charge of Supply-co LPG Gas Outlet, Kayamkulam, Alappuzha, 6[th] respondent, that Bharat Petroleum Corporation Limited (BPCL), Kochi LPG Territory, represented by General Manager, respondent No.1 will effect customer transfers from distributorship of the 6[th] respondent to the newly commissioned distributor, viz., M/s. BPR Bharat Gas Oachira P.O., Kollam, respondent No.7. WP(C)s: 34439/19 & 15424/20 ## -:6:- 3. Relief was also sought to command the respondents 1 & 2 therein, to refrain from adopting improper practice of transferring L.P.G. connections from one distributor to another. 4. W.P.(C) No.15424 of 2020 is filed by a distributor of LPG in Cherthala Taluk, Alappuzha District under BPCL, as per order dated 20.03.2013 issued by the Bharat Petroleum Corporation Limited, Thiruvananthapuram Territory LPG, represented by its Territory Manager, respondent No.3, since 2013. 5. He has filed the writ petition praying to quash circular dated 4.1.2018 (Exhibit-P2), issued by the CGM (Sales) LPG, Bharat Petroleum Corporation Ltd., Bharath Bhavan, Mumbai, respondent No.2, by which, the procedure for customer transfer has been revised on industrial basis for uniform implementation, and to issue a writ of mandamus directing the 3[rd] respondent not to approve the porting of existing LPG consumers of the petitioner, in favour of the 4[th] respondent. 6. W.P.(C) No.34439 of 2019 is filed by the petitioners, _inter alia_ , contending that the petroleum companies working in the nation have taken a policy of transferring LPG connections of domestic consumers WP(C)s: 34439/19 & 15424/20 -:7:- from one outlet to other newly formed outlets, without the consent of either the LPG dealers or the customers. 7. According to the petitioners, the said policy has created great inconvenience and loss to the consumers as a whole, and therefore, the Confederation of Consumer Vigilance Centre, a reputed consumer organisation, has challenged the policy before this Court in W.P.(C) No.26014 of 2019. 8. After hearing the companies, a learned single Judge by ExhibitP4 order dated 20.11.2019 directed the companies to maintain status quo, with respect to the consumer status, until further orders. 9. It was further stated that while matters stood thus, respondent No.2- Assistant Manager, LPG-Kottayam, BPCL, has intimated respondent No.6- the Officer in Charge, Supply-co LPG Gas Outlet, that the 1[st] respondent - General Manager, BPCL, Ernakulam, would effect customer transfers from distributorship of Kerala State Civil Supplies Corporation LPG Outlets, viz., the BPR Bharat Gas, Oachira, 7[th] respondent. 10. It was also stated that the 2[nd] respondent is intending to transfer the customer connections from the Officer in Charge, Supply-co WP(C)s: 34439/19 & 15424/20 -:8:- LPG Gas Outlet, 6[th] respondent, to the Proprietor, M/s. BPR Bharat Gas, Oachira, 7[th] respondent, from 17.12.2019 and the 2[nd] respondent has issued a communicated dated 10.12.2019 (Exhibit-P5) through email to the 6[th] respondent. 11. Aggrieved by Exhibit-P5 communication issued by the 2[nd] respondent, W.P.(C) No.34439 of 2019 has been filed by the petitioners therein, for the reliefs stated supra. 12. It is the case of the petitioner in W.P.(C) No.15424 of 2020 that the circular dated 04.01.2018 (Exhibit-P2) issued by the CGM (Sales) LPG, Bharat Petroleum Corporation Ltd., Mumbai, was challenged before the High Court of Bombay in W.P. No.8753 of 2018 and by an interim order dated 7.7.2018, initially, the operation of Exhibit-P2 circular was stayed. Thereafter, upon hearing all the respondents, including the 2[nd] respondent, the Hon'ble Bombay High Court, by judgment dated 30.09.2019 (Exhibit-P3), declared the circular arbitrary, irrational and it violates the vested rights of the existing distributors whilst providing for the benefit accruing to new distributors in the absence of intelligible differentia. WP(C)s: 34439/19 & 15424/20 ## -:9:- 13. Petitioner has also contended that Exhibit-P3 judgment of the Bombay High Court was followed in W.P. No.24844 of 2019 & connected case on the file of Madras High Court, in CWJC No.6375 of 2019 on the file of High Court of Patna, and in Civil Application No.2337 of 2020 on the file of High Court of Gujarat. 14. Petitioner in W.P.(C) No.15424 of 2020 has further stated that the 4[th] respondent therein has started distributorship in 2020, based on an interim order passed in W.P.(C) No.8881 of 2020 dated 20.03.2020. 15. It is further contended that under the guise of Exhibit-P2 circular, the 4[th] respondent is trying to get transfer of money from the existing customers of the petitioner to his gas agency. Several connections were transferred, without the consent and knowledge of the customers and approval by the Bharat Petroleum Corporation Limited., Thiruvananthapuram, respondent No.3. According to the petitioner, the said transfers are effected in most of the cases only when a new agency is commissioned in the vicinity. The petitioner has also stated that even under such circumstances, the consumer has got a right to be heard and well informed regarding such transfer. WP(C)s: 34439/19 & 15424/20 -:10:- 16. Petitioner has further stated that the transfer of the existing consumers as per Exhibit-P2 circular to the newly permitted distributor like the 4[th] respondent is illegal, arbitrary, and without jurisdiction, in view of the judgment in **N. Kumaran v. Indian Oil Corporation and Others** (W.A. N.964 of 2018) and the judgment dated 30.09.2019 in WP. No.8753 of 2018 on the file of Bombay High Court. Hence, the 3[rd] respondent cannot approve or endorse the transfer of consumers under the guise of Exhibit-P2 circular. 17. In such circumstances, W.P.(C) No.15424 of 2020 was filed by the petitioner for the reliefs stated supra. 18. On the above pleadings, petitioner in W.P.(C) No.15424 of 2020 has raised the following grounds: - A. The 2[nd] respondent – CGM(Sales) LPG, Bharat Petroleum Corporation Ltd., Mumbai, has no jurisdiction, either under the Petroleum Act, 1934 or under the Essential Commodities Act, 1955, to issue a circular like Exhibit-P2. Therefore, Exhibit-P2 circular is illegal, issued without jurisdiction and liable to be set aside. - B. Petroleum Act, 1934 is a consolidated statute governing the conditions to import, transport, storage, and production of petroleum products. It never confer any WP(C)s: 34439/19 & 15424/20 -:11:- power to the 2[nd] respondent to issue the impugned circular dated 04.01.2018. C. Referring to Section 3 of the Essential Commodities Act, 1955, petitioner has contended that Sec.3 confers power on Central Government to make rules regarding essential commodities. As per Section 5 of the Act, 1955, Central Government, by notification, delegates the power to make orders or issue notification to such State Governments. There is no such notification delegating the 2[nd] respondent to make rules in respect of petroleum products, under Section 5 of the Essential Commodities Act, 1955. Therefore, Exhibit-P2 circular is unsustainable in the eye of law liable to be declared as void. D. The Petroleum Act, 1934 does not confer any power to the 2[nd] respondent to make any rules or impose any conditions or restrictions, over and above the provisions in the Petroleum Act, 1934, under the guise of Section 3 of the Essential Commodities Act, I955. As per Section 29 of the Petroleum Act, 1934, in making any rules under the Act, the Central Government may provide for any matter ancillary to such rules for which in its opinion provision is necessary to protect the public from danger arising fiom the import, transport, storage, etc and make special provisions for special circumstances of any State or Place. E. Ext.P2 circular seeks restructuring of markets, subsequent to commissioning of new distributorship, the procedure WP(C)s: 34439/19 & 15424/20 -:12:- for customer transfer has been revised on industry basis for uniform implementation. Ext.P2 circular has two parts (A) & (B). Part (A) lays down the modalities, governing the distributorship awarded prior to USG 2016 and Part (B) lays down distributorship awarded post USG 2016. Ext.P2 seeks to restructure the LPG market by transferring customers of the existing distributors both prior to and under USG 2016. As per Ext.P2, the existing distributors, the 2[nd] respondent propounded a formula wherein refill sales in excess of 75% of the ceiling limit will stand transferred to new/non performing distributors, to achieve purported market viability of 50% of the ceiling limit for such new/non performing distributors. In short Ext.P2 circular contemplates a compulsory expropriation of customers of existing distributors up to 75 % ceiling limit and transfer them to those distributors who have less customers till they reach 50% of the ceiling limits.Ext.P2 Circular was enforced by the 2"‘! respondent by communication dated 13.03.2018 by order transferring customers of the existing distributors. F. Admittedly, the petitioner is a distributor LPGF, as per Exhibit-P1 since 20.03.2013. Hence, the 3[rd] respondent cannot enforce by porting the customers of the petitioner to the 4[th] respondent. G. Ext.P2 circular purports to impose parameters, without providing any reasons, basis or explanation for prescribing WP(C)s: 34439/19 & 15424/20 -:13:- such parameters gravely affecting the petitioner.Ext.P2 circular reveals no case for intelligible differentia to sustain the distinction as is being sought to be meted out to old distributor petitioner _visa vis_ new distributor 4[th] respondent. By implementing Ext.P2 circular, an unfair distinction is being drawn between new and existing distributors and even more unfair transfer policy is imposed without any intelligible differentia between such distributors. Further, the reasoning stated in Ext.P2 circular is not overwhelming public interest, which defeat the legitimate expectation of the petitioner as an existing old distributor. Thus, Ext.P2 circular cannot be enforced by respondents 2 and 3 approving the porting of existing consumers of the petitioner to the 4[th] respondent. H. Relying on the judgment in _**N. Kumaran v. Indian Oil Corporation and Others**_ (W.A No. 964 of 2018 dated 6.8.2018), the petitioners have stated that as regards the stated attempt of the Corporation(HPC) to make the 4[th] respondent (LPG Distributor) viable, the petitioner maintains that the Indian Oil Corporation has no right, legally or otherwise to transfer the customers of one distributor to another distributor to make the latter viable, and that, in the present regime of customer portability, it is only the customer who can choose to port from one distributor to the other in their own interests and no else”. He further stated that the Bench further added in the same decision that “We fail to understand how a policy could be WP(C)s: 34439/19 & 15424/20 -:14:- implemented even after the lapse of over seventeen years especially when the portability regime has been brought in wherein the customer is a King”. Thus, the 3[rd] respondent has adopted a method in violation of the existing law. 19. In support of the averments in W.P.(C) No.34439 of 2019, the Manager (Special Business) in the Kerala State Civil Supplies Corporation, on behalf of respondent No.4, has filed a counter affidavit dated 20.01.2022, contending, _inter alia_ , that if the LPG outlet is transferred to a private party, income of the petitioners therein would be deprived of. 20. Despite repeated correspondences and discussions at the Ministerial Level requesting that the connections may not be transferred, the 1[st] respondent company continued to shift the connections again and again, to the newly launched private agencies. Such an action on the part of the 1[st] respondent is improper. 21. It was further stated that Kerala State Civil Supplies Corporation is running the Bharat Gas LPG Outlet at Kayamkulam since 1990 onwards on ad hoc basis. Initially, the agency had about 50,000 connections and now it is only having 21,289 connections. When new agencies are launched, there would be a drastic decrease in the number WP(C)s: 34439/19 & 15424/20 -:15:- of connections made by the company, without the consent of its agency or its customers. 22. It was also submitted that by judgment in W.P.(C) No.8753 of 2019 dated 30.09.2019, the Hon'ble High Court of Bombay has set aside the Circular No. SL/1601 dated 14.01.2018 of the 1[st] respondent company regarding customer transfer. In spite of that, the 1[st] respondent has given a letter on 10.12.2019 stating that the connection will be transferred again. According to the 4[th] respondent Civil Supplies Corporation, shifting of connections would have a serious adverse impact on the income of the Corporation as well as the delivery boys. It was also stated that the action of the 1[st] respondent to shift the connections, without obtaining consent from the customers, is illegal. 23. Refuting the averments in the writ petitions, 4[th] respondent in W.P.(C) No.15424 of 2020 has filed a counter affidavit, wherein it is contended that the writ petition is not maintainable, either in law or on facts. Contention has been made that the writ petition has been filed taking due advantage of an ad hoc arrangement made, through which the petitioner was allowed to distribute cooking gas to the customers of a terminated agency for a short period, till another agency takes it over. WP(C)s: 34439/19 & 15424/20 -:16:- Now, the petitioner herein is refusing to release the customers of the terminated agency which is resumed in accordance with law. 24. Respondent No.4 has further stated that the petitioner is putting spokes in the wheels of the legal process of porting the existing LPG customers to the agency of the 4[th] respondent. Hence, the petitioner is not entitled to take advantage of the ad hoc arrangement made by the 3[rd] respondent to facilitate un-delayed supply of LPG to the customers. 25. Further contention has been made by the 4[th] respondent that the 3[rd] respondent had invited distributorship of LPG at various places, as per the advertisement dated 25.09.2013 in newspapers, as evident from Exhibit-R4(a). The 4[th] respondent agency was duly selected and a Letter Of Intent (LOI) dated 25.03.2014 was issued to it. Thereafter, a partnership under the name and style “M/s. Home Care Bharatgas” inducting the wife of the 4[th] respondent as a partner and 4[th] respondent as the Managing Partner was formed. However, due to certain legal intricacies, appointment of the 4[th] respondent agency could be completed only on 21.12.2019, as evident from Ext-R4(c) appointment letter issued by the Territory Manager (LPG), Trivandrum. WP(C)s: 34439/19 & 15424/20 -:17:- 26. As stated above, the 4[th] respondent has contended that there was a delay in completing the formalities for appointment of new distributor in Cherthala. In order to cater to the needs of the customers of the terminated agency, the petitioner in W.P.(C) No.15424 of 2020 was given the extra duty of delivering cooking gas to those customers, along with its existing unmanageable number of customers. It was purely an ad hoc arrangement till another agency comes into operation. However, the petitioner has refused to release the customers allotted to him purely on ad hoc basis. Though the 4[th] respondent made a number of requests, for getting back the customers, the same is not acceded to. 27. The 4[th] respondent has further contended that on his appointment as a distributor and the agreement entered into [ExhibitR4(d) dated 21.12.2019], his gas agency was extended Electronic Distribution Financing Scheme Facility based on an agreement entered into by the 3[rd] respondent BPCL and State Bank of India. For availing the said facility, a recommendation letter from the concerned was required. Accordingly, the Territory Manager (LPG), Trivandrum has issued a recommendation letter dated 1.1.2020 [Exhibit-R4(e)]. It was further stated that in the said recommendation letter, the expected sales to the WP(C)s: 34439/19 & 15424/20 -:18:- distributor is stated and the projected sales were marked at Rs.27,38,666/-, however, the actual figure attained is abysmally less since the existing customers are yet to be released. Hence, the 4[th] respondent has made a final request in writing to the Territory Manager (LPG), Trivandrum, seeking to allot to his firm all the customers who were handled by the terminated agency. 28. The 4[th] respondent further contended that Exhibit-P2 impugned circular was issued with various objects. Some of the objects are easy access to the customers with affordable cooking gas, economic viability of the distributors to make the operation area compact as far as possible. That apart, territorial convenience and economic viability are to be ensured, in order to maintain quality and service in distribution of cooking gas to the consumers. 29. Respondent No.4 has further contended that the findings and directions in the judgment dated 30.09.2019 in W.P. No.8753 of 2018 of the Bombay High Court will not apply to the facts of this case. The said judgment deals with a situation wherein an already existing dealer was supposed to allot a portion of its customers to a newly established WP(C)s: 34439/19 & 15424/20 -:19:- distribution agency beyond a particular ceiling limit. In the present case, the petitioner is illegally holding back the customers, who were allotted to him only as an ad hoc arrangement in an emergent situation. That apart, armed with an interim order to the effect that respondents 2 and 3 shall not transfer the existing consumers of the petitioner unilaterally to the 4[th] respondent, the petitioner is trying to stall the release of the customers entrusted to it, on ad hoc basis, which according to the 4[th] respondent, shall not be allowed. It was also stated that against Exhibit-P3 judgment of the Bombay High Court dated 30.09.2013 in W.P.(C) No. 8753 of 2018, the 4[th] respondent has filed Review Petition No. RPWST/29258 OF 2019. 30. Apart from the above, the Territory Manager of respondent No.3 in W.P.(C) No.15424 of 2020 has filed a counter affidavit, wherein it was contended that the present writ petition is nothing, but an experimental and baseless attempt of the petitioner to protect only his commercial interests. According to the 3[rd] respondent, the petitioner is nothing, but a rival in trade of the 4[th] respondent. In the absence of any statutory violation, rivals in trade have no right to object and cannot be held to be an “aggrieved person” in the eyes of law. WP(C)s: 34439/19 & 15424/20 -:20:- 31. Respondent No.3 has further contended that the petitioner has not even bothered to verify who has issued the impugned Exhibit-P2 circular. It was categorically submitted that the 3[rd] respondent has not issued Exhibit-P2 circular, and that the 3[rd] respondent does not have any CGM (LPG-Sales) named Sathish Kumar Thatipelli. The petitioner is challenging a document whose author is not even a party to the present proceedings. Hence, the writ petition is liable to be dismissed on the ground of non-joinder of necessary parties. 32. On the averment of the petitioner that customers have been transferred by the 3[rd] respondent from the petitioner to the 4[th] respondent, it is contended that the customers have been unilaterally transferred to the 4[th] respondent. While making such an allegation, the petitioner has not produced any shred of proof to substantiate the same. In support of the said submission, the 3[rd] respondent has relied on the decision in **Bharat Singh v. State of Haryana** [AIR 1988 SC 2181]. That apart, respondent No.3 has contended that the the right of public sector oil marketing companies to transfer the consumers of their LPG cylinders from the distributorship to another has been upheld by various courts of law, including by a Hon'ble Division Bench of this Court in **All** WP(C)s: 34439/19 & 15424/20 -:21:- **India L.P.G. Distributors Federation and Others v. Union of India and Others** [2003 (2) KLJ 451]. 33. It was further contended by the 3[rd] respondent that the majority of their shares is held by the Government of India. The 3[rd] respondent is under the administrative control of the Ministry of Petroleum & Natural Gas. Since the said Ministry takes all the policy decisions and issues guidelines and circulars in this regard, the respondents are bound to follow the same. In fact, Ministry of Petroleum & Natural Gas, Government of India, has issued a circular dated 16.02.2018 [Exhibit-R3(b)] requiring all the oil marketing companies to close down extension counter in the State of Kerala by 31.03.2018 and to transfer the existing customers to a nearby distributor through intracompany or inter-company. The action taken in this regard was to be reported to the Ministry by 25.02.2018. Hence, it is clarified that the oil marketing companies such as the 3[rd] respondent, are entitled to take policy decisions from time-to-time, in line with the directives of the Ministry of Petroleum and Natural Gas, to regulate the conduct of its business. The distributors of respondent No.3 are bound to abide by the decisions, as agreed to in the distributorship agreement. WP(C)s: 34439/19 & 15424/20 -:22:- 34. Referring to the averments contained in paragraph (10) of W.P. (C) No.15424 of 2020, the 3[rd] respondent has contended that the portion of the judgment dated 6.8.2018 in W.A. No.964 of 2018 [Exhibit-R3(e)], extracted in the paragraph under reference is not a finding of the court, but is only the submission of the petitioner therein, that is recorded by this Court. Therefore, reliance placed on the judgment by the petitioner is wholly unfounded and irrelevant. 35. Apart from the above, the 4[th] respondent has filed an additional counter affidavit, wherein it was contended as under: - A. The 4[th] respondent stated that it stands on a different footing than those mentioned in Exhibit- P2 circular, as his distributorship was granted as against a notification dated 25/9/2013 which is against a “Terminated Gas Agency". The said notification was produced as Ext. R4(a). Now, the 3[rd] respondent has filed a counter affidavit on 4/1/2021 and in paragraph 5 therein, it was specifically stated that the 3[rd] respondent has not issued Ext. P2 and that they do not have or did not have any CGM (LPG-Sales) named Satheesh Kumar Thatipelli. Therefore, the very case of the petitioner based on Exhibit-P2 circular dated 4.1.2018 has no legs to stand. - B. It has been stated in the Writ Petition that Ext. P2 circular WP(C)s: 34439/19 & 15424/20 -:23:- issued by the 2[nd] respondent was challenged before the High Court of Judicature Bombay in WP No. 8753/2018. It is also stated that according to Ext. P3 judgment, the Bombay High Court has declared that Ext. P2 circular is arbitrary, irrational, and it violates the vested rights of the existing distributors while providing for the benefit accruing to new distributors in the absence of intelligible differentia. The 3[rd] respondent in paragraph 16 of the counter affidavit has stated that a review petition no. RP WST/29258/2019 has been preferred against Ext.P3 judgment before the Bombay High Court. C. The 3[rd] respondent has also produced a relevant circular governing the transfer of customers as Ext. R3(d). It is submitted that though the 4[th] respondent is a distributor under the 3[rd] respondent, the issue on hand is not with respect to portability or transfer of customers based on Ext. R3(d) circular. It is true that as averred in the counter affidavit of the 3[rd] respondent that the petroleum companies are empowered to transfer consumers from one distributorship to another, as agreed to in the distributorship agreement, but the 3[rd] respondent in the counter affidavit has failed to point out the fact that, the 4[th] respondent has a vested right to get back all the connections which were transferred temporarily due to the fact that the earlier distribution was "Terminated and his distributorship is as against the distributorship of the terminated agency as clearly evident from Ext. R4(a). WP(C)s: 34439/19 & 15424/20 -:24:- Therefore, the very grant of distributorship as against a terminated agency makes the respondent rightfully eligible to receive all those connections of the terminated agency, which was transferred to nearby agencies on a temporary basis. D. The 4[th] respondent has filed WP(C) No.19068/2020 before a learned Single Judge for a direction commanding the 3[rd] respondent herein to re-allot the consumers of the terminated distributor (M/s. Prashanth Gas Agency), who was entrusted on an adhoc basis to the petitioner herein. When the said matter came up for admission, this Court passed an Interim order directing the 3[rd] respondent to consider Ext. P10 representation and pass orders within 2 weeks. Said Writ Petition was also directed to be posted along with this Writ Petition. On the basis of the interim order in WP(C) No.19068/2020, the 4[th] respondent had sent a detailed representation to the 3[rd] respondent on 31/12/2020 - Exhibit R4(h), enclosing the interim order. In spite of that, the 3[rd] respondent has not passed any order, and therefore, the entire action of the 3[rd] respondent is violative of the principles of promissory estoppel. E. The 4[th] respondent had repeatedly approached the 3[rd] respondent under the RTI Act, 2005, seeking for the copy of the guidelines/order/notification regarding the transfer of LPG connection held by a terminated LPG distributorship. The 4[th] respondent had made similar applications under the RTI Act, 2005 to the Hindustan WP(C)s: 34439/19 & 15424/20 -:25:- Petroleum Corporation Limited and also to the Indian Oil Corporation Limited. Both the petroleum corporations have responded stating that the customers/consumers of terminated distributors are transferred on a temporary basis to nearby distributors till a new distributor is appointed against the terminated distributor. Thereafter, the consumers are transferred to the newly commissioned distributorship as per norms in vogue. The reply dated 31/8/2020 issued by the Hindustan Petroleum Corporation Limited to the 4[th] respondent is produced as Exhibit R4(i) and reply dated 12/10/2020 is produced as Exhibit R4(j). ## F. It was further contended that the Oil marketing companies have an industry record note on alternate arrangement in case of suspension/resignation/termination of LPG distributor signed by the concerned officers of all the 3 Oil Marketing Companies, to maintain uninterrupted supplies and services to LPG consumers in the areas of such distributors, as evident from Exhibit R4(k). Therefore, there is an intelligible differentia between the consumers eligible to be transferred to the 4[th] respondent and other consumers in general. G. As stated above, the 4[th] respondent was appointed towards the terminated vacancy of M/s. Prasanth Gas Agency. At the time when the gas agency was terminated on 28/08/2013, there was 36698 connections held by the terminated distributor, as evident from Exhibit-R4(l) letter dated 27/08/2020 issued under the Right to Information WP(C)s: 34439/19 & 15424/20 -:26:- Act, 2005. The petitioner had applied under the RTI Act, 20054 for the name of LPG distributor, who was terminated, in lieu of whom, now dealership was called for at Cherthala vide advertisement dated 25/09/2013. H. It was also contended that the petitioner had got only 1163 customers as on 1.7.2021 and he is not in a position to continue unless he is made viable by the oil marketing company. In fact, the oil marketing company has been selectively transferring connections to held individual distributors on arbitrary basis. 3000 connections belonging to terminated gas agencies were transferred on a temporary basis. Later when Sooraj Mangala Gas was appointed into terminated vacancy, the 3000 connections were reallocated to Mangala Bharat Gas Agency in Thrissur district. Similar approach ought to be followed in the case of the petitioner also. I. It was further contended that this Court was pleased to pass an interim order dated 3.8.2020 in W.P.(C) No.15424 of 2020 commanding respondents 2 and 3 not to transfer the existing consumers of the petitioner unilaterally to the 4[th] respondent, in the absence of any such request from the consumers. It is respectfully submitted that this Court was not apprised of the actual factual scenario and the prevalent norm of customer transfer with respect to newly commissioned distributorship as against a terminated distributorship. Had the clear distinction been brought to the notice of this Court, no such interim order would have WP(C)s: 34439/19 & 15424/20 -:27:- been passed. The attempt of the petitioner is to misguide this Court under the guise of Exhibit-P2 circular dated 4.1.2018 and Exhibit-P3 judgment dated 30.09.2019 in W.P.No.8753 of 2018 of the Bombay High Court, which have no application as far as the petitioner's case is concerned. The petitioner cannot unilaterally take away the right of the 4[th] respondent to get back the customers which were transferred to his agency on a temporary basis. The 3[rd] respondent cannot feign ignorance of the policy with respect to transfer of consumers of a terminated distributorship and the petitioner's right to acquire the consumers of the terminated agency. Therefore, the interim order dated 3.8.2020 commanding the respondents not to transfer the existing customers ought to be vacated. - J. The 4[th] respondent has finally contended that W.P.(C) No.15424 of 2020 need not have been tagged along with W.P.(C) Nos.26014/2019 and 34439/2019, which have no bearing with the facts and circumstances of the present writ petition. 36. Heard learned counsel for the respective parties and perused the material on record. 37. W.P.(C) No.15424 of 2020 is filed by a distributor of LPG at Cherthala, Alappuzha district, whereas W.P.(C) No.34439 of 2019 is filed by the delivery boys in the LPG gas outlet conducted by Kerala State Civil WP(C)s: 34439/19 & 15424/20 -:28:- Supplies Corporation Limited, 4[th] respondent in the said writ petition. The contentions advanced in the writ petitions are basically in respect of the porting of existing customers done by the oil marketing companies to other dealers. According to the petitioners, as per the Unified Guidelines For Selection of LPG Distributorships, the location for setting up of LPG distributorships are identified based on the available refill sale potential that can sustain economically viable operation of LPG distributorship. 38. it is further contended that in selecting the locations, inputs would be taken from the State Governments, local administration and public representatives. It is also pointed out that to the extent possible, new LPG distributorship are planned only in virgin locations where there is neither any LPG distributorship existing nor serviced by any LPG distributor of oil marketing company. It is also submitted that transfer of LPG connection from one agency to another was at the discretion of the consumer and the usual practice of transferring LPG connection from one distributor to another commences only once the LPG connection holder submits his gas pass book and letter requesting transfer to the existing distributors. WP(C)s: 34439/19 & 15424/20 -:29:- 39. However, in the year 2016, a United Selection Guideline (USG) was propounded as selection criteria for a new distributorship by the Bharat Petroleum Corporation Limited, 2[nd] respondent in W.P.(C) No.15424 of 2020. Accordingly, as per circular dated 4.1.2018 (ExhibitP2), the procedure for customer transfer has been revised on industrial basis for uniform implementation. 40. It is further submitted that as per the settled legal position, oil corporation has no right legally or otherwise, to transfer the customers of one distributorship to another, to make the latter viable and in the present regime of customer portability, it is only the customer, who can choose to port from one distributorship to other, in his own interest. Apart from the above, various other contentions are also raised. 41. Now the question remains to be considered is as to whether the oil marketing companies are entitled to port their customers to other dealership. It is the case of the oil marketing companies that dealership is created on the basis of an agreement executed by and between parties and the dealer is liable to adhere to the agreement conditions. Hence it is submitted that by virtue of the conditions contained in the agreement, Corporation is entitled to reduce, restrict, modify or alter the area of WP(C)s: 34439/19 & 15424/20 -:30:- distribution of the existing distributors, and therefore, the reduction in the area of operation would automatically result in reducing the number of customers registered with the distributor. It is also contended that the appointment of new distributors for the area carved out of the operation limits of an existing distributor would automatically result in reduction of the number of customers. Therefore, we are of the view that the petitioners are not entitled to challenge the action of the respondents in transferring the customers from existing LPG distributorship to a new distributorship. Further, the mere introduction of the portability option, does not, in any manner whatsoever, take away the right of the respondent to transfer the customers. 42. It is also clear that adequate safeguards are provided while undertaking transfer for protecting the interest of the customers. Therefore, petroleum companies cannot be said to be not empowered to transfer the LPG connection of existing customers from distributorship to another. That apart, oil marketing companies are under the administrative control of Ministry of Petroleum and Natural Gas, Government of India and they are duty bound to follow the policy decisions/guidelines/circulars issued by the Ministry from time to time. WP(C)s: 34439/19 & 15424/20 -:31:- 43. It is an admitted fact that Ministry of Petroleum and Natural Gas has issued a circular dated 16.02.2018 [Exhibit-R3(b) in W.P.(C) No.1424/2020], requiring all the oil marketing companies to close down the extension counters, inter alia, in the State of Kerala by 31.03.2018 and to transfer the existing customers to the nearby distributor through intra-company or inter-company. Exhibit-R3(b) circular makes it clear that the Ministry of Petroleum and Natural Gas requires that as and when the refill (cylinder) sales of a distributor goes beyond the ceiling limit fixed for the area and if there is scope for putting up one or more distributorships, oil marketing companies are directed to put up one or more distributorship, in order to take care of the additional refill sale of the existing distributor and the potential. Therefore, we are of the view that the aim of the Ministry by initiating such a policy is to ensure that maximum LPG reaches to the public with minimum cost. That apart, we find force in the contention advanced by the learned counsel for the oil marketing companies that Bharat Petroleum Corporation Limited is bound to transfer the customers from one distributorship to another. We are also of the view that if the existing customers are transferred to a new distributorship, nearer to the customers’ locations, it would result WP(C)s: 34439/19 & 15424/20 -:32:- in reduced cost for procuring LPG cylinders for those, there being a policy decision taken by the Ministry in larger public interest. 44. It is also equally important to note that the circular makes it clear that the transfer of customers from existing distributorship is done to improve the services of supplying LPG cylinders to the public. 45. From the contentions putforth by the oil marketing companies, it is clear that no customers of the petitioner’s distributorship have been transferred to the new distributorship unilaterally and only those customers who opted to port their connections have been transferred from the existing distributorship. We are of the view that when a circular is issued by the Ministry to locate and identify, taking into account the prevailing market conditions, based on a ceiling limit of existing distributorships, in public interest, no manner of mala fides or arbitrariness can be attributed against such an action. This question has been considered by a Hon’ble Division Bench of this Court in **Vembanad Gas Agencies v. Union of India and Ors.** , (judgment dated 03.12.2021 in W.A. No.1785 of 2019). 46. In the abovesaid decision, after assimilating the legal and factual situations, the Hon'ble Division Bench held as under: WP(C)s: 34439/19 & 15424/20 -:33:- “6. We first consider the issue, whether the remedy under Article 226 of the Constitution of India could be invoked. We notice that the learned Single Judge has considered the issue on merits, but also reserved the right of the appellant to invoke the alternate dispute resolution mechanism. It was also made clear that the observations on merits would not govern the consideration in an arbitration initiated by the appellant. It is trite that if the learned Single Judge has declined discretion, then in appeal, we would not interfere with that, unless the impugned action is so unreasonable and arbitrary. Harbanslal Sahnia is also to that effect; but invoked the power when the dealership was terminated for an irrelevant and non existent cause. In the present case, since the learned counsel for the appellant has filed an appeal and all the parties have urged this Court to give an authoritative pronouncement, especially in the context of the subject being the interpretation of a dealership agreement, already spoken of by a Division Bench of this Court; a binding precedent, we proceed to deal with the matter on merits. 7. We have called for the Judge's Papers of WP(C) 1524 of 2020, the counter affidavit in which, was relied on by the learned counsel appearing for the 4[th] respondent, produced as Ext. R4(g). Ext. P2 in the said writ petition is the circular extracted in _**Shailaja R. Khanvilkar**_ (supra). The specific contention of the BPCL in the counter affidavit, is that Ext. P2 document is not one issued by it and there is no Chief General Manager (CGM-LPG, Sales) by the name of Sathish Kumar Thatipelli working in the BPCL. Ext. P3 judgment produced in WP(C)s: 34439/19 & 15424/20 -:34:- that case is the one which is produced before us across the Bar. In paragraph 16 of the counter affidavit, it is also pointed out that BPCL has filed a review petition, against the judgment of the Division Bench of High Court of Bombay. In any event, with due respect, we are unable to accede to the dictum that the reduction of the area or territory, would not include consumers and hence there could be no reduction of existing consumers of an existing distributorship. 8. Reduction of area or territory, though geographical, would necessarily involve the transfer of consumers, since no territory can be assigned without reference to the consumers therein and there can be no consumer in isolation, without reference to the territory or area. A consumer's subscription is based on and presupposes the location, where the product is to be delivered and he cannot have an existence, divorced from the area or territory within which he uses the LPG cylinder. An existing distributor may cater to a number of consumers in an area and with the increasing subscription, it may not be possible for that distributor alone to cater to the needs of all the consumers in the area. The profit element or business efficacy is not the sole consideration in a public utility service and the consumer's interest has primacy. It is in this context, there are appointments made of new distributors to cater to the increasing number of subscribers; which is a natural consequence of the area or territory of a distributor being reduced or modified for a new appointment. The consumers, new or old, who have their location in the area or territory, which stands severed from the existing WP(C)s: 34439/19 & 15424/20 -:35:- distributor, would necessarily have to be transferred to the new distributor, on which the existing distributor can have no grievance. 9. We cannot accede to the argument of Sri. Vijayan that, since the contract entered into between the distributor and the Oil Company is a commercial contract, the business efficacy of the distributor has to be given primacy. We cannot, but, observe that the argument raised as to whether the consumer belongs to the Company or the distributor, completely ignores and compromises the interest of the consumer, that too, the consumer of a public utility service, which is brought under the Essential Commodities Act. We reject the contention raised by the existing distributors of business efficacy of the distributor being the reigning factor. They expect an increase in turn over, over the years, based on which expectation, they have taken loans for vehicles, infrastructure and so on, as pleaded in the writ petition. If prudence dictates to them that the business is not viable, it is always open to them to stop it. Service, prompt and effective; in this case the regular supply of LPG cylinders, is what the State and its instrumentality strive to achieve, when dealing with public utility services. If the Corporation feels that the service will not be effective for reason of increasing subscribers, as per the norms laid down by them, they are entitled to appoint new distributors to cater to the multiplying subscribers in a given area by bifurcating the already allotted area between the existing and the newly appointed distributor. We cannot accede to the plea of the WP(C)s: 34439/19 & 15424/20 -:36:- distributors that, it is their business efficacy, which should rule the roost than the interests of the consumers. Such high handed attitude of distributors, ignoring the interest of consumers, especially in a public utility service, cannot be accepted and as rightly pointed out, it results in monopoly and the consumer would be left to the vagaries of individual distributors. 10. The Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order 2000 was specifically referred to by Sri Nirmal S. The distributor as defined under LPG Order, is a person, firm, etc who has been appointed by a Government Oil Company and engaged in the business of purchase, sale or storage for sale of LPG in cylinders to consumers on the basis of an agreement with a Government Oil Company. Hence, the agreement entered into between the distributor and the Company has a statutory backing. The clauses of the agreement also support the case of the respondent Company. Clause 1(b)(ii) reserves the right of the Corporation to appoint one or more additional distributors in the same territory, referred to in clause 1(a); which is the territory assigned to the distributor in that agreement. The distributor cannot object to such an appointment and sub-clause (iii) further entitles the Corporation at its discretion to reduce, restrict, modify or alter the area of the distributorship territory; which decision is binding and final on the distributor. While sub-clause (iv) prohibits the distributor from selling outside the territory, sub-clause (v) exhorts the distributor to enroll as many consumers and canvass business WP(C)s: 34439/19 & 15424/20 -:37:- for developing and increasing the sale of LPGs. As far as the appellant is concerned, the agreement is one entered into in 1989 and continued over the years. The appellant would have canvassed consumers, which definitely would not have been possible without the brand name of the Company. The mere canvassing of subscriptions does not entitle the distributor to retain the consumers, because, the subscription made is to the Company and not to the distributor. In this context, the subscription voucher as pointed out by Sri. Nirmal S., assumes relevance. The subscription voucher is that of the respondent Corporation and not of the distributor. 11. The LPG Manual issued by the consortium of Oil Marketing Companies (OMC) at Chapter II deals with marketing. Clause 4.7 deals with the relationship between consumer, distributor and OMCs, which is as under:- "Distributor is appointed by OMCs on "Principal to Principal basis". Distributor is responsible for all business and dealings with the OMCs consumer. The consumer is enrolled by the Distributor on behalf of OMC. The Subscription Voucher is signed by the consumer and is also required to be signed by the distributor on behalf of Corporation. The terms and conditions of the contract are printed on the Subscription Voucher. OMCs are at liberty to service its consumer through any Distributor. The cylinder and regulator are provided against deposit and hence they are given on loan to consumer(Other than FTL equipment) by the Oil Company through the distributor". We also extract one sentence from 5.1.1 dealing with subscription of vouchers, which is as under:- WP(C)s: 34439/19 & 15424/20 -:38:- "The consumer is considered to be a "subscriber" to these services and the contract which he/she signs is called the Subscription Voucher(SC)". Hence the contract of the subscriber/consumer is with the Oil Company and the distributor signs the subscription voucher on behalf of the Company, which makes it an agent, in so far as the public utility service of supply of LPG cylinders is concerned. 12. We now come to the argument of the contract being between principal and principal, which arises from clause 17 of Ext. P1 agreement, which is extracted hereunder:- "In all contracts or engagements entered into by the Distributor with the consumers for sale of LPG and/or the sale and/or installation and/or repairs of appliances and/or connections thereof with LPG Cylinders equipment the Distributor shall act and shall always be deemed to have acted as a Principal and not as an agent or on account of the Corporation, and the Corporation shall not in any way be liable in any manner in respect of such contracts and/or engagements and/or in respect of any act or omission on the part of the Distributor, his servants, agents and workmen in regard to such installation, sale, distribution, connections, repairs or otherwise. The Distributor shall be bound to inform the consumers in writing of this provision, through correspondence or at the time of enrollment, of the consumer". The business of distributorship is carried out by the distributor as a principal without any vicarious liability cast on the company, with respect to the sale, installation, repairs of appliances or pressure regulators, refills and other equipments which the distributor purchases from the WP(C)s: 34439/19 & 15424/20 -:39:- Company and sells to the consumer. The company distances itself from the actual supply effected by the distributors, which is again through the infrastructure and employees of the distributor. It cannot distance itself from the essential responsibility to supply LPG cylinders to the consumers, following the norms and guidelines which regulate the public utility services. A breach committed by the distributor would be the responsibility of the distributor, but the company definitely would have a supervisory role and such breach would also entail penalties and sanctions from the Company. There cannot be any proprietary rights of the consumers on the company, especially in a public utility system and it is the option of the consumer to chose the company or the distributor; subject only to those existing in the area in which such consumer is located. The primacy of the consumer cannot be given a go-by and there cannot be a proprietary right on the Company and least of all, on the distributor of the consumers canvassed by them and serviced. The consumer has the freedom to migrate from one distributor to another or from one oil company to another, so far as there is a supply carried out in the location of the consumer. ## 13. The Division Bench of this Court in _**All India LPG Distributors Federation**_ (supra) held so in paragraph 16. "16. We are unable to accept the contention. Admittedly, the Corporation has reserved the right to reduce the area of operation. It has also reserved the right to appoint additional distributors for the area initially allotted to them. The reduction in the area of operation would automatically result in the number of consumers registered with the dealer. WP(C)s: 34439/19 & 15424/20 -:40:- Equally, the appointment of new dealers for the area carved out of the operational limits of an existing dealer would automatically result in the reduction of the number of consumers. Thus, it cannot be said that the action of the Corporation or the Government of India violates the terms of the agreement". We bow to the above proposition and are unable to follow the dictum of the decision in Shailaja R. Khanvilkar (supra) for reason of the binding precedent of this Court and also on our independent consideration; we find ourselves unable to accede to that position. 14. Having considered the issue on merits on consent of parties and having interpreted the clauses in the agreement, which has a statutory backing, as has already been interpreted by another Division Bench of this Court, we find no cause to reserve the remedy of the appellant in the arbitration proceedings. We do not find any reason to entertain the appeal. We hence reject the appeal, leaving the parties to suffer their respective costs.” 47. Perusal of the abovesaid judgment makes it clear that the very same issue raised was considered and the Hon’ble Division Bench has declined to grant any relief sought for by the petitioner therein. 48. As we have pointed out above, circulars/guidelines are issued by the Ministry of Petroleum and Natural Gas on the basis of policy decisions taken in larger public interest. The distributors are bound by WP(C)s: 34439/19 & 15424/20 -:41:- the covenants executed by and between them and the oil marketing companies and the rights protected under the agreement by the Corporation in regard to the new distributorship etc., are entitled to be implemented by the Corporation to serve the consumers and make a public utility system, and for protecting the same, to satisfy the requirements of the customers, rather looking into the commercial and economic interest of the distributors. 49. Going through the circulars and guidelines issued by the Ministry of Petroleum and Natural Gas and Bharat Petroleum Corporation Limited, it could be deduced that what is intended to be protected there, is the interest and well being of the customers, and therefore, the contention putforth by the distributors, as well as the delivery boys of Liquefied Petroleum Gas (LPG) Outlet, conducted by the Kerala State Civil Supplies Corporation Limited (Supply-co) that the shifting of consumers from the existing distributorship is illegal and arbitrary, cannot be sustained in law. To put it otherwise, we are in respectful agreement with the decision of the Hon’ble Division Bench of this court in _**Vembanad Gas Agencies**_ (cited supra). WP(C)s: 34439/19 & 15424/20 -:42:- 50. In the light of the above, we have no hesitation to hold that the petitioners have not made out a case for interference and secure any reliefs, as sought for, in the respective writ petitions. In the result, Writ Petitions fail and accordingly, they are dismissed. No costs. **Sd/S. MANIKUMAR CHIEF JUSTICE** **Sd/SHAJI P.CHALY JUDGE** krj WP(C)s: 34439/19 & 15424/20 -:43:- ## **APPENDIX OF WP(C) 34439/2019** ## **PETITIONER EXHIBITS:-** **EXHIBIT P1 COPY OF THE DELIVERY DETAILS AND DELIVERY CHARGES FOR THE MONTH OF 11/2019 IN RESPECT OF SUPPLYCO, KAYAMKULAM UNIT ISSUED BY THE DEPOT MANAGER, HARIPAD.** - **EXHIBIT P2 COPY OF THE LETTER DATED 31/03/2018 ISSUED BY THE 6TH RESPONDENT TO THE 5TH RESPONDENT.** - **EXHIBIT P3 COPY OF THE REPRESENTATION DATED 18/11/2019 SUBMITTED BY THE 1ST PETITIONER BEFORE THE HON'BLE MINISTER FOR FOOD AND CIVIL SUPPLIES.** **EXHIBIT P4 COPY OF THE INTERIM ORDER DATED 20/11/2019 OF THIS HON'BLE IN WPC 26014/2019.** **EXHIBIT P5 COPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDENT TO THE 6TH RESPONDENT.** ## **RESPONDENTS' EXHIBITS:- 'NIL'** WP(C)s: 34439/19 & 15424/20 -:44:- ## **APPENDIX OF WP(C) 15424/2020** ## **PETITIONER'S EXHIBITS:-** **EXHIBIT P1 COPY OF ORDER NO.TVM-LPG-CHERTHALA (OPEN) DATED 20.03.2013 ISSUED BY THE 3RD RESPODENT.** **EXHIBIT P2 COPY OF THE CIRCULAR DATED 04.01.2018 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P3 COPY OF JUDGMENT DATED 30.09.2019 IN WP NO.8753 OF 2018 OF THE BOMBAY HIGH COURT.** ## **RESPONDENTS' EXHIBITS:-** - **EXHIBIT-R3(A) COPY OF THE DISTRIBUTORSHIP AGREEMENT DATED 26.08.2013 AND SUPPLEMENTARY AGREEMENTDATED 27.04.2019 EXECUTED WITH THE PETITIONER.** **EXHIBIT-R3(B) COPY OF THE CIRCULAR ISSUED BY THE MINISTRY OF PETROLEUM & NATURAL GAS DATED 16.02.2018.** - **EXHIBIT-R3(C) COPY OF THE RELEVANT PAGES OF THE PSU OIL MARKETING COMPANYS' MANUAL FOR SELECTION OF LPG DISTRUBUTORS UNDER “UNIFIED GUIDELINES FOR SELECTION OF LPG DISTRIBUTORSHIPS”, APPLICABLE FROM 15.2.2019.** - **EXHIBIT-R3(D) COPY OF THE CIRCULAR DATED 10.01.2018 OF 3RD RESPONDENT.** - **EXHIBIT-R3(E) COPY OF THE JUDGMENT DATED 6.8.2018 PASSED BY THIS HON'BLE COURT INW.A. NO.964 OF 2018.** - **EXHIBIT R4(A) COPY OF THE ADVERTISEMENT DATED 25/09/2013 CARRIED BY THE MALAYALA MANORAMA DAILY.** - **EXHIBIT R4(B) COPY OF THE LETTER OF INTENT(LOI) DATED 25/03/2014 ISSUED BY THE TERRITORY MANAGER(LPG), TRIVANDRUM.** - **EXHIBIT R4(C) COPY OF THE APPOINTMENT LETTER DATED 21/12/2019 ISSUED BY THE TERRITORY MANAGER(LPG), TRIVANDRUM.** WP(C)s: 34439/19 & 15424/20 -:45:- **EXHIBIT R4(D) COPY OF THE AGREEMENT DATED 21/12/2019 ENTERED INTO BY THE 3RD AND 4TH RESPONDENT.** **EXHIBIT R4(E) COPY OF RECOMMENDATION LETTER ISSUED BY THE TERRITORY MANAGER(LPG), TRIVANDRUM.** **EXHIBIT R4(F) COPY OF REQUEST TO THE TERRITORY MANAGER (LPG), TRIVANDRUM, DATED 25.07.2020.** **EXHIBIT R4(G) COPY OF REPLY ISSUED BY THE TERRITORY MANAGER(LPG), TRIVANDRUM (3RD RESPONDENT) DATED 26.08.2020.** **EXHIBIT R4(H) COPY OF THE REPRESENTATION DATED 31/12/2020.** **EXHIBIT R4(J) COPY OF THE REPLY DATED 31/8/2020 ISSUED BY THE HINDUSTAN PETROLEUM CORPORATION LIMITED TO THIS RESPONDENT.** **EXHIBIT R4(K) COPY OF THE INDUSTRY RECORD NOTE ON ALTERNATE ARRANGEMENT IN CASE OF SUSPENSION/RESIGNATION/ TERMINATION OF LPG DISTRIBUTOR SIGNED BY THE CONCERNED OFFICERS OF ALL THE 3 OIL MARKETING COMPANIES DATED 5/3/2015.** **EXHIBIT-R4(L) COPY OF THE LETTER DATED 27/08/2020 ISSUED UNDER THE RTI ACT.** **EXHIBIT-R4(M) COPY OF THE LETTER DATED 8/7/2020 ISSUED UNDER THE RTI ACT.** **EXHIBIT-R4(N) COPY OF THE LETTER DATED 20/07/2020 ISSUED UNDER THE RTI ACT.** **EXHIBIT-R4(O) COPY OF THE PROCEEDINGS FOR DRAW DATED 27/01/2014.** ## **KRJ** **//TRUE COPY//** **P.A. TO C.J.**