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2013 DIGILAW 287 (JK)

Abdul Rahim Rather v. Indian Oil Corp. and Others

2013-05-08

ALI MOHAMMAD MAGREY, M.M.KUMAR

body2013
JUDGMENT M.M. Kumar, C.J.—A short issue raised in the instant appeal filed by one Abdul Rahim Rather-appellant is, whether a Retail Outlet under the Kissan Seva Kendra Scheme could be installed adjacent to the National Highway which in the present case falls on National Highway IB. The learned Single Judge has non suited the writ petitioner-appellant by recording the statement of his counsel, admitting that Kissan Seva Kendra Scheme outlet could not be opened adjacent to the area of National Highway and prayed that respondents be directed to withdraw the impugned advertisement. The view of the learned Single Judge is discernible from the following paras of the judgment which reads thus- 5. It appears that disputed question of facts are involved in the matter which cannot be gone into, in a writ petition. Mr. Javed Iqbal, learned counsel for petitioner has admitted that Kissan Seva Kendra Retail Outlet cannot be opened on National Highway and prayed that respondents be directed to withdraw the impugned notification and allow the petitioner to establish a retail outlet. 6. Keeping in view the discussion made hereinabove, I am of the view that no agreement is concluded between the parties and no retail outlet of Kissan Seva Kendra Scheme, can be installed at Highway way or State Road. Petitioner has not earned any right to make a claim for allowing him to execute the job. If at all, the petitioner has suffered any damage, he can claim compensation for the same and that too by availing proper remedy. Mr. Javed Iqbal, learned counsel for the appellant-writ petitioner has drawn our attention to the stand taken by the Indian Oil Corporation Limited in para 7(a) of its written statement. It has thus been submitted that respondents were prepared to grant exemption in favour of the appellant-writ petitioner if he had incurred substantial amount on the development of the site in question, like construction of boundary wall and part construction of the building etc. A reference has also been invited to clause 10 of the Letter of Intent, which talks of the grounds on which the Letter of Intent could be withdrawn. These two grounds are (a) if there is suppression and/or misrepresentation of material facts in the application filed by the appellant-writ petitioner for award of dealership and (b) if the dealer has been convicted for any criminal/economical offence involving moral turpitude. These two grounds are (a) if there is suppression and/or misrepresentation of material facts in the application filed by the appellant-writ petitioner for award of dealership and (b) if the dealer has been convicted for any criminal/economical offence involving moral turpitude. According to the learned counsel there is no other ground to withdraw the Letter of Intent issued in favour of the appellant-writ petitioner on 23.01.2006 (Annexure B). 2. Mr. Anil Bhan, learned counsel for the Indian Oil Corporation has, however, argued that as per the scheme there is no possibility of permitting installation of Retail Outlet under Kissan Seva Kendra Scheme on an area adjacent to the National Highway. Mr. Bhan has maintained that it is admitted case before the learned Single Judge and appellant-writ petitioner cannot resile from the aforesaid factual position. 3. Having heard the learned counsel for the parties we are of the considered view that the order passed by the learned Single Judge is based on the admission made on behalf of the appellant-writ petitioner which was to the effect that no Retail Outlet under the Kissan Seva Kendra Scheme could be installed in the area adjacent to the National Highway or National Highway IB. Even otherwise once there is a bar created by the scheme it would not be possible for a Writ Court to issue a mandamus in favour of the appellant-writ petitioner to permit him to install the Retail Outlet dealership in the area adjacent to the National Highway IB. 4. The issue with regard to exemption raised on behalf of the appellant-writ petitioner would also not require any detailed examination because relaxation of condition under the scheme cannot be claimed as a matter of right resulting in issuing of a direction by this Court under Article 226 of the Constitution of India read with Section 103 of the Jammu and Kashmir Constitution. The appeal does not merit admission and is this liable to be dismissed. For the reasons aforesaid this appeal fails and the same is dismissed.