IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21ST DAY OF OCTOBER, 2019 PRESENT THE HON’BLE MR.ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR. JUSTICE S.R.KRISHNA KUMAR WRIT APPEAL NO.3799 OF 2019 (GM-RES) BETWEEN:
KAMADHENU MAHILA STHRI SHAKTHI RATION CARD HOLDERS SOCIETY NO.45/82, 8TH CROSS, 8TH MAIN, 3RD BLOCK MAHADEVAPPA PLOT, NANDINI LAYOUT BANGALORE – 560 086 REP. BY ITS SECRETARY (BY SHRI SHIVARAMU H.C., ADVOCATE) AND:
1. THE MINISTRY OF PETROLEUM & NATURAL GAS SHASTRI BHAVAN NEW DELHI – 110 001 REPRESENTED BY ITS SECRETARY 2. THE CHAIRMAN & MANAGING DIRECTOR BHARAT PETROLEUM CORPORATION LTD. DU PARC TRINITY, 7TH FLOOR NO.17, M.G.ROAD BANGALORE – 560 001 3. THE TERRITORIAL MANAGER BHARAT PETROLEUM CORPORATION LTD. DU PARC TRINITY, 7TH FLOOR NO.17, M.G.ROAD BANGALORE – 560 001 ... APPELLANT ... RESPONDENTS ---
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO SET ASIDE THE ORDER DATED 23.07.2019 PASSED BY THE LEARNED SINGLE JUDGE IN W.P.NO.240/2018 AND ETC.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, CHIEF JUSTICE DELIVERED THE FOLLOWING:
JUDGMENT Heard the learned counsel appearing for the appellant who has challenged the order dated 23rd July 2019 passed by the learned Single Judge. The writ petition filed by the appellant was dismissed by the learned Single Judge.
2. The third respondent – a petroleum company invited applications for grant of LPG distributorship. The appellant who is the writ petitioner applied and was declared as qualified in the draw of lottery. One of the conditions was that the applicant should have a plot of land for the godown premises within the distance of 15 kilometres from the advertised location which in the present case was Solur location in Ramanagara District. The application made by the petitioner was rejected on the ground that the distance between the godown premises and Solur village was more than 15 kilometers. That order was challenged by the appellant by filing Writ Petition No.17863/2015. By the order dated 19th October 2016, the learned Single Judge directed to reconsider the application of the appellant with regard to the location of the godown by holding a joint meeting and a survey. In terms of the said order, a joint inspection was carried out in presence of a representative of the appellant and the officers of the third respondent. The conclusion drawn after the joint inspection was that the appellant’s godown premises is not situated within a distance of 15 kilometres of the location i.e. Solur village. Based on the said joint inspection, by the order dated 16th November 2017, the application made by the appellant was rejected which was challenged by the appellant by filing the present writ petition. The rejection was on the basis of what is recorded in the Joint Inspection report which reads thus:
“The Kamdhenu Mahila Strishakti Ration Card Holder Society (KDMSSRCHS) represented by their secretary Mrs.Bhagyamma was intimated for the time of verification on 9th August for the inspection and was mutually agreed to have a joint inspection on date 11th August 11, 2017.
The following members were present for joint inspection.
1. Ms.Babita Bharathan – Manager Sales LPG 2. Mr.Aaftaab Vakil – TC Sales, Bangalore Territory LPG 3. Mrs. Bhagyamma B.G., Secretary, KDMSSRCHS 4. Mr.T.Lakshmana, H/o Mrs.Bhagyamma B.G.
With respect to the FVC conducted for the empanelled candidate in application no BLR/SLR/35, joint Re-verification of distance was carried out from Solur to location of Godown as Shown in the application in Plot No.6 & 7, KHB Colony, opp to RMC Yard, Kunigal Town as follows 1. From Showroom in Solur Village to the location of the godown as shown in the application the distance recorded is 23.9 Km (one way).
2. From Solur Panchayat limits to the location of the Godown as shown in the application the distance recorded is 21 Km (one way).”
(underline added) 3. The learned Single Judge came to the conclusion that the joint inspection report of the inspection carried out on 11th August 2017 has been duly signed by the appellant and there was no complaint made by the appellant though a joint re-verification of the distance was carried out. But before the learned Single Judge, the appellant relied upon the communication dated 2nd January 2019 addressed by the Assistant Executive Engineer to an officer of the third respondent stating that the requisite distance from the godown is 14.5 kilometres. The said document was rejected by the learned Single Judge on the ground that the certificate was issued on the basis of the request made by the appellant and moreover, the Assistant Executive Engineer before recording the conclusion regarding the distance has not carried out the measurement in the presence of the third respondent.
Therefore, by rejecting the said contention and by relying upon the joint inspection report of re-verification done on 11th August 2017, the learned Single Judge rejected the writ petition.
4. The first submission of the learned counsel appearing for the appellant is that on 11th August 2017, re-verification of the distance was not carried out. He invited our attention to paragraph 13 of the writ petition. He submitted that on the basis of the certificate dated 10th January 2014 issued to the third respondent by the Assistant Executive Engineer PWD No.1 Sub-Division, Ramanagara, the third respondent has accepted the application of another party for grant of dealership and, therefore, there is a discrimination. He submitted that though in the writ petition there may not be any specific assertion that no measurements were carried out on 11th August 2017, the said contention is implicit in paragraph 9 of the writ petition.
5. We have carefully considered the submissions. The application made by the appellant was rejected by the third respondent based on the failure of the appellant to comply with the qualification prescribed that an applicant should possess the premises for locating the LPG showroom within 15 kilometres from the periphery of town/municipality/village of the location. The said order of the third respondent rejecting the application of the appellant was challenged by the appellant by filing W.P.No.17839/2015 which was disposed of by the order dated 19th October 2016. The contention raised by the appellant in the said petition was that in the application it was stated by the appellant that the premises was located at a distance of 14.5 kilometres from the periphery of the location. In paragraph 5, the learned Single Judge has observed that considering the grievance, appropriate course will be to provide a platform for the parties to have a joint inspection, consider the distance as well as the convenience of the godown for the purpose of locating the showroom keeping in view the interest of the customers. Therefore, reconsideration of the application was ordered by the learned Single Judge. The said order dated 19th October 2016 has attained finality. Based on the said order dated 19th October 2016, a joint inspection was carried out on 11th August 2017. The joint verification was recorded by the document dated 11th August 2017 which is admittedly signed by the appellant.
6. The learned counsel appearing for the appellant relied upon what is recorded in the meeting called on 30th March 2017 (Annexure-H2 to the writ petition). We have carefully perused the said document. The said document does record that in the re-verification, the measurement of the distance was carried out. On the contrary, the Secretary of the appellant who was present recorded his willingness for a joint re- inspection at a convenient date. Accordingly, the joint verification was made on 11th August 2017 which we have referred above. The joint verification shows that the distance between the respective locations of the godown and the showroom was 23.9 kilometres and from the Solur panchayath limit to the location of the godown, the distance was 21 kilometres. There is nothing placed on record to show that the appellant made any protest at any time after 11th August 2017 that what is recorded in the document dated 11th August 2017 is erroneous or incorrect. Based on the said document signed by the appellant, the impugned communication dated 16th November 2017 was issued rejecting the application of the appellant.
7. We have carefully perused paragraph Nos.9 and 13 of the writ petition. Paragraph 9 extensively refers to the inspection carried out on 11th August 2017. It is not the case made out either in paragraph 9 or in any other paragraphs of the writ petition that in fact, the distance was not measured on 11th August 2017. In fact, what is averred in paragraph 9 is to the contrary. The relevant part of paragraph 9 of the writ petition reads thus:
“… Accordingly, an inspection was conducted on the day prescribed i.e. on 11.08.2017 and drawn a finding holding that the location of the godown premises owned by the petitioner is 21 Kms. away from the Solur Panchayat limits and also recorded a finding that the godown premises owned by the petitioner is 23 Kms. away as shown in the application as per ANNEXURE-J.
….”
8. Thus, in substance, the appellant has accepted that the inspection was carried out and the measurement was done on 11th August 2017. As stated earlier, the appellant never challenged the correctness of what is recorded in the joint inspection memo drawn to which the appellant’s representative is a signatory. Condition No.7 in the guidelines for selection of dealership is reproduced by the appellant himself in the writ petition which reads thus:
“A plot of land of minimum dimensions 25M X 30M (within 15 Km. from municipal/town/village limits of the location offered in the same State) for construction of LPG Godown for storage of 8000 Kg of LPG in cylinders. The plot of land for construction of godown not meeting the minimum dimensions of 25M x 30M will not be considered.”
(underline supplied) 9. The inspection was carried out on 11th August 2017 on the basis of the order dated 19th October 2016 passed by the learned Single Judge in the earlier writ petition filed by the appellant. The appellant did not challenge the said order. The appellant did not challenge the inspection and measurement carried out on 11th August 2017 which clearly shows that the appellant did not comply with condition No.7.
10. Therefore, the learned Single Judge rightly relied upon the re-verification report signed by the appellant.
11. Reliance placed by the appellant on the document dated 2nd January 2019 has been rightly rejected by the learned Single Judge . For more than one reason, we find the said finding to be correct. The first is that the appellant was bound by the re-verification done on 11th August 2017 which he had never challenged. Secondly, it is not the case that the Assistant Executive Engineer re-measured the distance after notice to or in presence of the officers of the third respondent.
12. The argument of discrimination is irrelevant. Assuming that somebody else was granted dealership though he did not satisfy the condition No.7, obviously the grant was illegal. On the basis of such a grant made in breach of the guidelines, the appellant cannot invoke Article 14 of the Constitution of India.
13. Accordingly, we find no merit in the appeal and the same is dismissed.
14. As there is no merit in the appeal, none of the interlocutory applications survive and the same are disposed of.
Sd/- CHIEF JUSTICE Sd/- JUDGE AHB