IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 14TH DECEMBER 2009 / 23RD AGRAHAYANA 1931 WP(C).No. 25857 of 2009(B) --------------------------------------- PETITIONER: ------------------- THE KERALA MALANAD KARSHAKA PRODUCE CO-OPERATIVE MARKETING SOCIETY LTD. NO.F.1777, THIRUVAMBADY POST, CALICUT, KERALA-673 603, REPRESENTED BY ITS SECRETARY SHAJI SEBASTIAN. BY MR.P.RAVINDRAN, SENIOR ADVOCATE, ADV. MR.P.DEEPAK. RESPONDENTS: ------------------------ 1. BHARATH PETROLEUM CORPORATION, KOCHI LPG TERRITORY OFFICE, AMBALAMUGAL, KOCHI-682 302. 2. THE TERRITORY MANAGER, BHARATH PETROLEUM CORPORATION, AMBALAMUGAL, KOCHI. 3. NIDHIN JOY, THOMARAKKATTIL HOUSE, THIRUVAMBADY-673 603. 4. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF PETROLEUM & NATURAL GAS, NEW DELHI. W.P.(C). NO.25857/2009-B: *ADDL.R5 IMPLEADED: 5. K.A. MATHEW, S/O. P.J. ANTONY, KOCHALUNGAL HOUSE, KARIAMPADY.P.O., MEENANGADY, WYANAD – 693 591. *ADDITIONAL 5TH RESPONDENT IS IMPLEADED AS PER ORDER DATED 17/11/09 IN I.A. 14340/09. R1 & R2 BY MR.N.N.SUGUNAPALAN, SENIOR ADVOCATE, ADV. MR.S.SUJIN, R3 BY ADVS. MR.BABU JOSEPH KURUVATHAZHA, MR.B.G.BHASKAR, R4 BY ADV. MR.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDIA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/12/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.25857/2009-B: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE BROCHURE CONTAINING THE TERMS AND CONDITIONS FOR ALLOTMENT. EXT.P.2: COPY OF THE APPLICATION DTD. 24/01/08. EXT.P.3: COPY OF THE COMMUNICATION DTD. 25/02/2009. EXT.P.4: COPY OF THE AFFIDAVIT DTD. 03/03/09. EXT.P.5: COPY OF THE MARK SHEET RECEIVED BY THE PETITIONER DTD. 25/07/2009. EXT.P.6: COPY OF THE OBJECTION DTD. 01/08/09. EXT.P.7: COPY OF THE COMMUNICATION DTD. 26/08/09. RESPONDENTS' EXHIBITS: EXT.R3.A: COPY OF THE APPROVED BYELAW OF THE PETITIONER CO-OPERATIVE SOCIETY. EXT.R3.B: COPY OF THE INFORMATION DTD. 18/08/2009 ISSUED BY THE ASST. REGISTRAR OF CO-OPERATIVE SOCIETIES (AUDIT), KOZHIKODE. EXT.R3.C: COPY OF THE CERTIFICATE DTD. 25/01/2008 ISSUED BY THE KABANI INDANE SERVICES, KALPETTA, WAYANAD. //TRUE COPY// P.A. TO JUDGE. Prv. THOTTATHIL B. RADHAKRISHNAN, J ........................................... WP(C).NO.25857 OF 2009 ............................................ DATED THIS THE 14TH DAY OF DECEMBER, 2009 JUDGMENT The petitioner and respondents 3 and 5 were considered by the competent Committee of the first respondent BPCL for allotment of LPG Distributorship in terms of Ext.P1 notification. The third and fifth respondents obtained marks higher than the petitioner and ultimately the allotment has been made in favour of the third respondent. The petitioner challenges that. 2. In support of the writ petition, the plea is that clause 5(o) of Ext.P1 deals with open category and clause 14 deals with allotment of marks, which read along with the provisions relating to exclusion in favour of the institutions would show that educational qualifications, age and personality are Wpc 25857/09 2 irrelevant considerations while awarding marks to an institutional applicant. 3. Ext.P3 shows that the Central Government has come out with some modifications regarding the qualifications and eligibility criteria for non-individual applicants. 4. It is contended that the awarding of marks for the third respondent for experience was totally unfounded and that the objection raised by the petitioner in this regard as per Ext.P6 has found an irrelevant and cryptic answer in Ext.P7. The specific plea of the petitioner in Ext.P6 that marks awarded to it for experience, business ability etc, is not in terms of the guidelines is not answered at all in Ext.P7, it is contended. 3. The third respondent is on record contending that the petitioner was ineligible for being considered in as much as its bye laws Wpc 25857/09 3 Ext.R3(a) - clearly shows that those bye-laws were approved negativing the desire of the petitioner to conduct business in petroleum products. This plea is sought to be supported by the cancellation by scoring of clause 11 among the objects of the petitioner as discernable from Ext.R3(a). It is further pointed out that though the petitioner had stated in the application before BPCL that it is a profit making institution, Ext.R3(b) certification by the Co-operative Department shows that it had been running on loss from 2004-2005 onwards. With this, it is contended that the petitioner does not demonstrate sufficient locus to challenge the selection of the third respondent. 4. BPCL is on record with a counter affidavit stating, among other things, that the selection of the third respondent and the Wpc 25857/09 4 preference given to him over the petitioner were based on, among other things, proper evaluation including that the third respondent has mentioned in his application that he had worked as Manager in M/s. Kabani Indane LPG Distributorship at Kalpetta for one year and that he had done jewellery business for three years. The Company has also stated that the distribution selection committee had awarded appropriate marks to the petitioner in terms of the guidelines. 5. Evaluation of the different aspects including experience is a matter to be done on the basis of the assertions made in the application which, if ultimately turn to be false on field the investigation, that report would disentitle the selected candidate to continue with the dealership. The third respondent has been selected on the clear Wpc 25857/09 5 finding on the basis of his statement in his application that he had one year's experience in the field of LPG Distributorship. This appears to be corroborated by Ext.R3(c) Certificate produced by the third respondent from Kabani Indane Services. With that, the question of judicial review of the marks alloted to third respondent has necessarily to wait. Now, on the question of the marks awarded to the petitioner, Ext.R3(a) as it now stands, clearly excludes any statement from the petitioner that it was involved in dealing with petroleum or petroleum products. The petitioner does not have such a case also. Therefore, the company cannot be found faulted with for having found the third respondent to be eligible for selection in preference to the petitioner, based on the statements in the application. 6. Having found as aforesaid, it does not Wpc 25857/09 6 appear to be necessary for this court to dwell deeper on the plea of the third respondent that on the basis of Ext.R3(a) and (b), the petitioner is not entitled to challenge the selection of the third respondent or the refusal of BPCL to select the petitioner. For the aforesaid reasons, this writ petition fails and the same is accordingly dismissed. No costs. THOTTATHIL B RADHAKRISHNAN, JUDGE lgk/18/12