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2012 DIGILAW 2494 (MAD)

A. Balamani v. Bharat Petroleum Corporation

2012-06-18

M.VENUGOPAL

body2012
Judgment :- 1. The petitioner has preferred the present Writ of Mandamus praying for an issuance of an order by this Court in directing the respondents 1 and 2 to comply with the LPG Marketing Plan 1996-98 approved by the Ministry of Petroleum and Natural Gas dated 05.09.1997 and supplemented by guidelines dated 14.02.2000 by the fifth respondent/Director (Marketing), Ministry of Petroleum and Natural Gas, Government of India, New Delhi which provides for Rural Distributorship embracing the adjoining area covering the villages to a radius of 15 kms. Further, the petitioner has also prayed for issuance of an order being passed by this Court restraining the respondents 1 & 2 from identifying or locating in any manner appointing or granting of distributorship in favour of the third respondent at the proposed location namely, Vembadithalam Village, Salem Taluk and District, (falling within the petitioner's distribution area from Elampillai Village, Salem Taluk, Salem District). 2. It is not in dispute that the petitioner is allotted (SC Quota) LPG Gas (used for domestic consumption) dealership in retail vending in the form of LPG cylinders of the fourth respondent/Senior Regional Manager, Hindustan Petroleum Corporation Ltd., H.P. Gas, (Liquefied Petroleum Gas), Tiruvallur District. 3. She purchased a land for a sum of Rs.19 lakhs for establishing the godown and retail outlet and also purchased two vehicles for loading the cylinders and moving the same to the spot of dealership from the stock yard of the fourth respondent. 4. According to the petitioner, a LPG agency was to cater the needs of the Elampillai village residents and adjacent villages in and around the radius of 15 kms. The said village and surrounding villages at the radius of 15 kms have about 3500 connections only. The other LPG agencies of other petroleum companies are situated outside the radius of 14 to 15 kms. 5. One Velu Gas Service, an IOC LPG outlet is situated at Attayampatti at a distance of 14 kms from Elampillai Village. Similarly, Kalki Gas Service an IBP LPG gas agency is situated at the distance of 17 kms at Edapadi. Another gas agency namely, Thai Thanthai Gas Agency is situated on the north which is a HP LPG dealership at Tharamangalam which is about 15 kms from Elampillai. That apart, Vetri Murugan Gas Agency is situated at Kondalampatti at about 20 kms from Elampillai on the east. Another gas agency namely, Thai Thanthai Gas Agency is situated on the north which is a HP LPG dealership at Tharamangalam which is about 15 kms from Elampillai. That apart, Vetri Murugan Gas Agency is situated at Kondalampatti at about 20 kms from Elampillai on the east. Further, Ganga Kaveri Gas agency is situated at 25kms from Elampillai. 6. The plea of the petitioner is that all the aforesaid LPG agencies are situated at a radius of 15kms from each other. Further, the Ministry of Petroleum and Natural Gas has issued necessary guidelines for locating new LPG distribution of any petroleum company. Added further, the policies and Marketing Plan are drawn by the fifth respondent/Director (Marketing), Ministry of Petroleum and Natural Gas, Government of India, New Delhi. At this stage, the Learned counsel for the petitioner urges before this Court that the Ministry of Petroleum and Natural Gas as per the letter dated 23.06.1997 has devised broad guidelines for including the locations and Marketing Plan 1996-98 and supplemented Marketing Plan 1996-98, most of the locations classified as Urban/Rural and Rural were found feasible after the inclusions of villages within a radius of 15kms from the location specified. 7. Advancing his arguments, the Learned counsel for the petitioner submits that as regards the classification of Urban and Rural marketing area, the following parameters are taken into consideration for formulating the said Market Plan: i)rural areas on the fringes of the existing semi-urban/urban markets ii)rural market having adequate potential for independent distributorship without embracing adjoining area iii)rural market by including adjoining area within 15kms radius. Accordingly, in respect of distributorship located in a rural market ought to be given the area including the location and the villagers within 15kms. 8. Expatiating his submissions, the Learned counsel for the petitioner draws the attention of this Court to the guidelines issued by Head Office, LPG (Sales) in Letter No.SL/KKH/1400 dated 14.02.2000, by which the distributorship under urban/rural and rural will be given an area including the location and the villages within 15kms, the Letter of Intent which issued mentioning the location without mentioning the villages within the radius of 15kms. In the said letter of Head Office, LPG (Sales) dated 14.02.2000, it is categorically inter-alia mentioned that these distributorship will release connection upto 15kms radius of Mandal Head quarters boundary etc., and this guideline/circular issued has a binding force on all the oil companies which are signatory to the letter but the spirit and tenure of the circular has not been followed and the same has been violated and therefore, the petitioner has filed the present writ petition. 9. The Learned counsel for the petitioner draws the attention of this Court to the Inter Office Memo dated 29.02.2000 by the Deputy General Manager (I.PG Sales) Head Office, addressed to the General Manager/Deputy General Managers, All State Offices, LPG Incharges, wherein it is stated that "LPG Marketing Plan 1996-98 and supplemented Marketing Plan 1996-98, most of the locations classified as Urban/Rural and Rural were found feasible after conclusion of villages within 15 kms from the mentioned location. As such, it is desirable that whether these distributors were allowed to operate within a radius of 15kms from the location etc." and contends that the distributor as per this memo must be allowed to operate within a radius of 15kms from the location and the authorities concerned cannot violate the spirit and tenor of the Inter Office Memo issued therein. 10. Yet another submissions made by the Learned counsel for the petitioner is that the first and second respondents have appointed the third respondent to run the LPG Agency at Vembadithalam Village and the said location is about 2kms from the petitioner's business part and the said act of allowing the third respondent to operate LPG gas agency is in negation of the guidelines issued by the concerned authorities. Also that the petitioner has submitted a representation to the first and second respondents on 11.04.2007, but the same has not yielded any fruitful results. 11. Conversely, it is the submission of the Learned counsel for the first and second respondents that the writ petition filed by the petitioner has become an infructuous one, inasmuch as the third respondent has been appointed as a LPG distributor of Bharat Petroleum Corporation Ltd., at Vembadithalam Village location, Salem Taluk and District. As a matter of fact, a Letter of Intent has been issued to the third respondent on 18.07.2007 and distributorship commenced on 24.01.2008 in the name and style of 'Amudha Bharat Gas Agency', Vembadithalam. As a matter of fact, a Letter of Intent has been issued to the third respondent on 18.07.2007 and distributorship commenced on 24.01.2008 in the name and style of 'Amudha Bharat Gas Agency', Vembadithalam. As such, on this ground, the writ petition is liable to be dismissed. 12. Continuing further, the Learned counsel for the first and second respondents projects a legal argument that the petitioner has no legal right/locus standi to maintain the present writ petition for the simple reason that she has no enforceable legal right and the first and second respondents have no corresponding legal obligation/duty. 13. Apart from the above, the Learned counsel for the first and second respondents strenuously contends that the internal office circulars/memos relied on by the petitioner are inapplicable and they have no statutory force having the force of Law and hence, no reliance can be placed upon the internal communication of the authority concerned. Moreover, the petitioner is a rival distributor of Bharat Petroleum Corporation Ltd. 14. To lend the support to the contentions that the petitioner has no locus standi to challenge the setting up of another LPG agency in violation of Law, the Learned counsel for the first and second respondents cites the decision of Division Bench of this Court reported in Nataraja Agencies rep. by its Proprietor, G. Natarajan Dealer, Indian Oil Corporation Ltd., Pondicherry Vs. The Secretary, Ministry of Petroleum and Natural Gas, Government of India, New Delhi and others [ 2005 (1) CTC 394 ] wherein following the decision of the Hon'ble Supreme Court it is held that 'a rival business man cannot file writ petition on the ground that establishing rival business venture in his place violates provisions of law as there is no vested right in the applicant which can be enforced in law'. Further, if the petitioner has legal right, the petitioner can enforce remedy in law for violation of any law, then the petitioner is entitled to file a suit before the competent Court for claiming damages against the first and second respondents and other concerned authorities. Therefore, the writ petition filed by the petitioner is liable to be dismissed. 15. The Learned counsel for the first and second respondents seeks in aid of the decision of the Division Bench of this Court reported in M/s.Palani Murugan Agencies rep. by its Proprietor, Kadirvelu, Hindustan Petroleum Dealer, Thyaga Thurgham, Ullundhurpet, Villupuram District Vs. Therefore, the writ petition filed by the petitioner is liable to be dismissed. 15. The Learned counsel for the first and second respondents seeks in aid of the decision of the Division Bench of this Court reported in M/s.Palani Murugan Agencies rep. by its Proprietor, Kadirvelu, Hindustan Petroleum Dealer, Thyaga Thurgham, Ullundhurpet, Villupuram District Vs. 1.The District Collector, O/o.Collectorate, Villupuram 2.Indian Oil Corporation rep. by its Senior Divisional Manager, Chennai-34 [ 2005 (1) LW 792 ] wherein it is held that "a rival businessman has no locus to challenge the allotment even if the allotment was illegal, because no right vested in such writ petitioner is infringed". 16. In Law of Torts, setting up rival business is 'Damnum sine injuria' meaning damage without infringement of legal right. In the counter filed by the third respondent, it is averred inter alia that the writ petitioner is having more or less 8000 customer services and her monthly off take is more than the viability norms and therefore, she should come forward to surrender her customers to some extent to enable the third respondent to continue her business as per the letter No.P-20012/65/2000-MKT dated 16.10.2001 and 01.02.2002. Further more, it is also made mention of in the counter that the larger interest of public claim of monopoly in the distribution area of the petitioner is untenable and in fact, the third respondent has invested more than Twenty lakhs of rupees. 17. At the time of filing of the writ petition, the petitioner has sought the relief of Mandamus, forbearing the respondents 1 & 2 from identifying or locating in any manner appointing or granting of distributorship in favour of the third respondent at the proposed location being Vembadithalam Village, Salem Taluk and District falling within the distribution area of the petitioner (being operated) from Elampillai Village, Salem Taluk, Salem District. 18. It is an admitted fact that as on date, the third respondent is running a gas distribution agency in the name and style of 'Amudha Bharat Gas Agency', Vembadithalam by commencing the said business on 24.01.2008. 18. It is an admitted fact that as on date, the third respondent is running a gas distribution agency in the name and style of 'Amudha Bharat Gas Agency', Vembadithalam by commencing the said business on 24.01.2008. When the petitioner in law has no enforceable legal right to file the present writ of Mandamus in regard to the allotment of gas agency, then the other remedy open to him is to approach the Competent Civil forum in claiming damages if any (by filing Civil Suit) in accordance with law and in the manner known to law, if so advised. Viewed in that perspective, the Writ Petition sans merits. 19. In the result, the Writ Petition is dismissed leaving the parties to bear their own costs. It is made clear that the dismissal of the present writ petition will not preclude the petitioner to agitate her legal rights or pursue her legal remedy before appropriate Competent Civil forum to claim damages if any in the manner known to law and in accordance with law by arraying necessary parties, if so advised. In that event, liberty is granted to the parties to raise all factual and legal pleas.