Indian Oil Corporation Ltd And Ors vs United Fuels Dealers And Ors

Shaji P. Chaly, J

These appeals are directed against the common judgment of the learned Single Judge dated 12.5.2020 in W.P.(C) Nos.9883/2014 and 10562/2014,

by the respondents. Having been aggrieved by the following directions issued by the learned Single Judge in the judgment, these writ appeals are filed:

“4. I have considered the contentions advanced. Though the petitioners have raised contentions seeking payment of incentives in terms of Ext.P1,

the essential question which arises for consideration before this Court at the present time is only with regard to the refund of the amounts already paid

to the petitioners. I am therefore called upon to consider only the question of legality of the notices issued to the petitioners requiring them to refund

the amounts already drawn by them on the basis of the XTRACARE scheme incentives in force. The petitioners have raised a specific contention

that they were not made aware of any change in the policy and that the amounts had been released to them till the first quarter of 2013. Though the

respondents have placed counter affidavit on record pointing out that there were modifications to the policy and specifically pleading that the circular

dated 2.5.2012 provides that incentives will not be granted in case of the dealers registering a negative growth, there is no pleading to the effect that

the dealers were put on notice at any point of time that they would not be entitled to the incentives unless they register positive growth. On the

contrary, the pleading in the counter affidavit itself is to the effect that the amount of incentives eligible as per Ext.P1 had been granted to the

petitioners till the first quarter of 2013 but such payment was by mistake. The contention raised by the respondents is to the effect that several dealers

have refunded the amounts and that the petitioners alone cannot contend that they are not liable to refund the same. In view of the fact that the

respondents themselves had paid the amounts to the petitioners, apparently, without noticing the change in policy brought about by Ext.R2(4) and since

it is not disputed that the petitioners have provided the extra facilities required for claiming the incentives as per Ext.P1 and the modifications brought

about thereto, I am of the opinion that the communications issued to the petitioners requiring them to refund the amounts already paid by the

respondents is completely untenable and unsustainable. Even if it is the case of the respondents that the amounts were not liable to be paid pursuant to

Ext.R2(4), I am of the opinion that since the amounts had already been disbursed to the petitioners and since the incentives were paid against the

maintenance of extra facilities by the dealers, the contention of the respondents cannot be accepted.

The petitioners had approached this Court immediately after the issuance of the notices and had obtained interim orders against recovery of

incentives paid pursuant to the notices. The fact that other dealers had not challenged the notices and had paid the amounts cannot be a reason for

rejecting the claim raised by the petitioners. This is more so in view of the fact that the specific case of the petitioners that they were not made aware

of the requirement in the amended policy has not been specifically controverted by the respondents.

In the above view of the matter, I am of the opinion that the prayers sought for in these writ petitions are liable to be allowed. The impugned notices

are quashed. However, the prayer for payment of further amounts on the basis of Ext.P1 cannot be allowed since it is an admitted fact that the policy

has undergone a change and that incentives can be granted only in terms of the policy as amended.

These writ petitions are ordered accordingly. â€​

The subject issue relates to unilateral stoppage of incentives given to retail dealers of the Indian Oil Corporation Limited and also the claims for

refund of the incentives provided. According to the writ petitioners, the order in question issued by the Indian Oil Corporation are in fragrant violation

of the provisions of fairness, equity and natural justice. It was also pointed out that writ petitioners were providing additional facilities and services in

their outlets in accordance with the directions issued by the Indian Oil Corporation to the retail dealers individually. It was also submitted that

incentives towards the compensation was certified and cleared from 2008 onwards based on the inspection and verification carried out. Other legal

contentions were also raised to substantiate the contention that the action of the Corporation stopping the incentives and re-calling the incentives

already provided to the writ petitioners are bad and illegal.

The learned Single Judge after taking into account the attendant facts and circumstances projected by the writ petitioners and the contentions raised

in the counter affidavit filed by the Indian Oil Corporation, has arrived at the finding that the Corporation itself paid the amounts without noticing the

change in policy brought about by the Corporation and also that it is not disputed that the writ petitioners have provided the extra facilities required for

claiming the incentives as per Ext.P1 directions of the Corporation and the modifications brought about thereto and therefore, the refund sought for

was held to be bad. It was also found that the contention advanced by the writ petitioners that they were not made aware of the requirement in the

amended policy has not been specifically controverted by the respondents. Anyhow, the further prayer sought for by the writ petitioners for payment

of further amounts on the basis of the offer extended by the Indian Oil Corporation cannot be allowed since it was found that the policy had undergone

a change and that incentives can be granted only on the basis of amended policy. Appellants relied upon Ext.R2(4) change of policy and submitted that

the writ petitioners were aware of the change of policy on and w.e.f. 2nd May, 2012 and therefore, the appellants were justified in re-calling the

incentives on the basis of change of policy. It was also pointed out that meetings of the dealers were frequently called for and further that the

subsequent change of policy was implemented by the retail dealers and therefore, the retail dealers cannot be said to be ignorant of the policy dated

2nd May, 2012.

We have heard learned counsel for appellants Sri.Thushara James (Dr.), learned counsel for writ petitioners Sri.Brijesh Mohan and perused the

pleadings and materials on record.

The sole question to be considered is whether any manner of interference is required in the judgment of the learned Single Judge ? In our

considered view, except from the contentions raised in the counter affidavit filed by the appellants before the writ court that the retail dealers were

aware of Ext.R2(4) circular issued by the appellant Corporation in regard to the change of policy, no documents were produced before the writ court

to substantiate the said contention. Mere submission made before the writ court that periodical meetings of the retail dealers were conducted and

therefore, the dealers can be presumed to be aware of the change in policy is not a legally sustainable contention. It was taking into account the said

legal aspects and factual circumstances available on record only, the learned Single Judge has allowed the writ petition partly and declined the

continuance of the incentive facilities overlooking the amended policy.

On appreciation of the facts and law raised by the appellants, we do not think, the appellants have made out a case of any illegality or unfairness in

exercise of the discretion by the learned Single Judge justifiable to be interfered exercising the power of appeal conferred under section 5 of the

Kerala High Court Act, 1958.

Needless to say, writ appeals fail, accordingly they are dismissed.