Indian Oil Corporation Limited vs Atul Nayak

This is an appeal by the appellant/Corporation calling in question tenability of order-dated 3.6.2013, passed by the writ Court in Writ Petition No. 15896/2012.

Respondent submitted an application for grant of LPG Distributorship. On account of the respondent not fulfilling the financial criteria laid down in the Policy for grant of Distributorship, his case was not considered and, therefore, he approached the writ Court. The writ Court found that while considering the financial status of the respondent, the amount and the evidence produced with regard to his financial status based on the current account balance was not taken note of and, therefore, disposed of the writ petition with a direction that action be taken afresh. The learned writ Court disposed of the matter in the following manner:

" ... So far as financial aspect is concerned clause 7.1(v) of the Policy is relevant, which reads as under:

''(v) Having minimum total amount of Rs. 15 Lakhs for Urban Markets and Rs. 10 Lakhs for the Urban-Rural & Rural Markets respectively as on the date of the application. This amount is to be arrived at by adding amount in Savings Bank account in Scheduled Banks/Post Office, free and un-encumbered Fixed Deposits in Scheduled Banks, Post Office, Listed Companies/Government Organization/Public Sector Undertaking of State and Central Government, Kisan Vikas Patra, NSC, Bonds, 2 Shares of Listed Companies, Listed Mutual Funds, ULIP, PPF Surrender Value or Life Insurance Policies in the name of applicant or family members of the ''Family Unit'' of the applicant as defined above. In case of locations reserved under ''SC/ST'' category, minimum total amount as on the date of application should be Rs. 5 Lakhs for Urban Markets and Rs. 2.5 Lakhs for Urban-Rural & Rural Markets respectively.''

Since the petitioner has prima facie shown from the documentary evidence that he is having current account in which the balance, on the date of filing of the application, was more than 10 Lakhs, therefore, the petition is disposed of with a short direction to the effect that upon production of the order passed today by this Court the competent authority shall decide the same after giving opportunity of hearing by passing a reasoned order in which all the financial credential of the petitioner shall be taken into consideration, as mentioned in the application. It is made clear that while deciding the representation submitted by the petitioner the competent authority shall not be influenced by the defence taken by the respondent in this return. Needful be done within two months from the date of production of the order passed by this Court today. Till then, interim order passed by this Court shall remain in force.

With the aforesaid directions, the petition filed by the petitioner stands disposed of."

It is pointed out by Shri Aditya Adhikari, learned counsel for the appellant that if Clause 7.1(v) of the Policy, as reproduced by the learned writ Court, is taken note of, it would be seen that it specifies the particular category of investments and accounts which can be taken note of for assessing the financial capacity. The policy does not contemplate taking note of the financial capacity of an applicant based on his current account balance. That being so, it is stated that once the financial capacity is not to be evaluated based on the current account balance, the learned writ Court be directing for evaluating the financial status based on the current account balance has proceeded beyond the policy and this is not permissible. It is stated that the respondent did not challenge the policy and the learned Court having issued the direction in a manner which has the effect of extending the ambit of the policy and substituting it, has committed an error.

Placing reliance of two judgments of the Supreme Court in the cases of State of Jharkhand and Others Vs. Ashok Kumar Dangi and Others, ; and, Sanjay Kumar Shukla Vs. Bharat Petroleum Corporation Ltd. and Others, ; and, a Division Bench judgment of this Court in the matter of Rakesh Dora Vs. Union of India and others, Writ Appeal No. 117/2014 decided on 6.3.2014, learned counsel argued that once a policy or scheme is laid down, the writ Court is required to follow the policy or scheme in its totality and cannot substitute the scheme or policy or subtract from the scheme until and unless the policy itself is called into question.

Accordingly, contending that in the facts and circumstances, the learned Writ Court has acted in a manner which is not permissible, interference into the matter is sought for.

Shri Sankalp Kochar, learned counsel for the respondent, argued that after the writ petition was disposed of on 3.6.2013, the respondent/corporation has decided the representation and a 4 separate writ petition has been filed challenging the same, as such now no further orders are necessary in this appeal. In the alternative, learned counsel made a submission that both the petitions be heard together.

Shri Aditya Adhikari, learned counsel for the appellant, explained the position by saying that when orders were not passed by the Corporation, the respondent persisted upon taking action for contempt and, therefore, reserving the right of the Corporation to challenge the order of the writ petition, the order on the representation has been passed and, therefore, he says that the legal question be decided.

WE have heard learned counsel for the parties and considered the rival contentions. As far as the contention of Shri Kochar that the writ appeal be dismissed as order on the representation in pursuance to the directions in the writ petition has already been passed, is concerned, we are not inclined to follow such a procedure.

The Corporation has passed the order because of fear of contempt in not complying with the order and once they say that the order has been passed without prejudice to their right to challenge the order in the writ appeal, it is not appropriate to dismiss the writ appeal on the ground that order has been passed on the representation. The question involved in the matter i.e.. the legal question with regard to the right of the writ court, in including the current account balance, in a category which is not contemplated in the Policy, is a question which requires 5 consideration and this being a pure question of law, we propose to deal with the matter.

Admittedly, the policy in question which is reproduced hereinabove i.e... Clause 7.1(v) contemplates various heads based on which the financial capacity of an applicant is to be determined. These include the saving bank account in a Scheduled Bank, Post Office and various other Fixed Deposits, as indicated therein. There is nothing in this Scheme or Policy to say that the current account balance of the applicant is also to be taken note of. That being so, the learned writ court has committed an error in directing for considering the representation of the petitioner, by taking note of his financial capacity and evaluating it in the backdrop of the current account balance available in his account. This was not permissible. This amounts to adding something to the Scheme or policy which was not contemplated by the original policy makers.

The judgments of the Supreme Court in the cases; Ashok Kumar Dangi (supra); Sanjay Kumar Shukla (supra); and, the Division Bench order in the case of Rakesh Dora (supra), relied upon by Shri Aditya Adhikari clearly lays down a principle that when the policy makers and the authorities have formulated a scheme, the writ Court or a Court of law exercising judicial review is not required to interfere with the Policy until and unless statutory violation or constitutional provisions are shown to be violated.

In the present case, apart from the fact that the Policy itself is not called in question, the learned writ Court has issued a direction which is not in conformity with the Policy. On the contrary, it not only runs contrary to the policy, but it also has the effect of amending the policy. This is not permissible and, therefore, the directions issued so far as it contemplates for evaluating the financial status of the respondent/petitioner based on his current account status was not permissible and to that effect interference into the matter is called for.

Accordingly, we modify the order-dated 3.6.2013, passed by the learned writ Court in W.P. No. 15896/2012, by holding that the corporation may evaluate the financial status of the respondent herein in accordance to the policy, but while doing so the directions issued for considering the current account balance is quashed.

With the aforesaid modification, the appeal stands allowed and disposed of.

CC as per rules.