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Wednesday, May 18, 2016

when the appellant is in possession - granting of interim stay before judging whether the allotment is valid or not - Status Quo is sufficient as prima faice case and balance of inconvenience is infavour of appellant = The dispute between the appellant and respondent No. 2 relates to allotment of retail dealership of the Petrol Pump of the Indian Oil Corporation Ltd. (respondent No. 1) located between Km stone 94-97 as S.H. 11 as Sonepat as mentioned in Advertisement (Ann. P1) at item No. 115. Respondent No. 2 questioned the allotment made to the appellant in aforementioned writ petition successfully before the single Judge giving rise to filing of two appeals before the Division Bench. One is filed by the appellant and other by the Indian Oil Corporation Ltd. These appeals were admitted for final hearing, wherein aforementioned interim stay was granted.= the High Court should not have passed the interim order of the nature which is impugned herein. Instead, in our view, having regard to the factual scenario, it could at best direct the parties to maintain status quo as existed on the date of impugned order, i.e., 25.04.2016 in relation to petrol pump. On perusal of documents filed herein, we find that the appellant (a widow) has been running the petrol pump in question for more than a year. In this view of the matter, the prime facie case, balance of convenience and irreparable loss was more in appellant’s favour rather than in favour of respondent No. 2. We accordingly allow the appeal, set aside the stay granted by the Division Bench and instead direct the parties to maintain status quo as existed on the date of the order, i.e., 25.04.2016 in relation to the subject matter of the appeal, i.e., Petrol Pump located between Km stone 94- 9 on S H 11 (at S.N. 115) at Sonepat as specified in Ann. P-1 advertisement notice.



                                                              Non-Reportable
                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 5174 OF 2016
                    (ARISING OUT OF SLP(C) NO.13981/2016)


      Krishna Devi                                       Appellant(s)


                             VERSUS


      Indian Oil Corporation Ltd. & Anr.           Respondent(s)


                       J U D G M E N T



Abhay Manohar Sapre, J.
Leave granted.
2.    Having regard to the nature of  short  controversy  involved  in  this
appeal, notice to Respondent No. 1 is not considered necessary. It  is  more
so when the contesting respondent No. 2 is present on caveat.
3.    The High court while admitting the appeal of Respondent No. 1  against
the final order dated 28.01.2016 passed by the  Single  Judge  in  W.P.  No.
19906/2013 filed by Respondent  No.  2  against  the  appellant  herein  and
Respondent No. 1 passed the following interim order:-

“The controversy in these Letter Patent Appeals pertains to  appointment  of
Retail Outlet Dealership. The selection committee  placed first  respondent-
writ petitioner at No. 1 and the appellant in  the  accompanying  appeal  at
No. 2 without even inspecting the land offered by  them.   After  the  merit
list was circulated on 06.03.2013, the land offered by respondent No. 1  was
inspected  on  07.05.2013  and  found   ‘suitable’   on   08.05.2013.   Soon
thereafter,  on  27.05.2013,  the  inspection  committee   asked   for   the
‘demarcation of the land’ in  question.  The  record  further  reveals  that
first respondent claims to have taken on lease the land measuring 2  Kanals,
9 Marlas out of total land measuring 22 Kanals 13 Marlas. The land is  owned
by several co-sharers and one of them has  in  fact,  filed  even  partition
proceedings. The said co-sharer had raised  objection  against  installation
of retail outlet on the piece  of  land  offered  by  respondent  No.  1  as
without partition, she cannot claim that the  prime  front  portion  of  the
land abutting the main highway, has fallen to the share of her lessors.

      The appellant is unable to explain as to how could it  make  selection
or declare the land ‘suitable’ without verifying the record as it was  still
a joint holding and the affidavits relied upon by respondent No. 1  are  not
by all the co-sharers.

      Similarly, the appointment of appellant in the accompanying appeal  as
the Retail Outlet Dealer on the basis of her placement at  No.  2  in  merit
list is equally strange. The site  where  she  has  statedly  installed  the
outlet is 40 kilometers away  from  the  area,  which  was   advertised  for
appointment of dealership.

      Prime-facie, the merit list appears to  have  been  prepared  for  the
reasons other than the merit.

      Admit.

      Operation of the order passed by learned  Single  Judge  shall  remain
stayed. Resultantly, neither respondent No.  1  nor  the  appellant  in  the
accompanying appeal shall be allowed to operate  the  retail  outlet.  Fresh
advertisement, if any,  by  the  Corporation,  shall  be  subject  to  final
outcome of these appeals.

4.    Feeling aggrieved by the interim order passed by the  Division  Bench,
the appellant has filed this appeal.
    Brief facts:
The dispute between the appellant and respondent No. 2 relates to  allotment
of retail dealership of the Petrol Pump of the Indian Oil  Corporation  Ltd.
(respondent No. 1) located between Km stone 94-97 as S.H. 11 as  Sonepat  as
mentioned in Advertisement (Ann. P1) at item  No.  115.   Respondent  No.  2
questioned the allotment  made  to  the  appellant  in  aforementioned  writ
petition successfully before the single Judge giving rise to filing  of  two
appeals before the Division Bench. One is filed by the appellant  and  other
by the Indian Oil Corporation Ltd.  These appeals were  admitted  for  final
hearing, wherein aforementioned interim stay was granted.
Without going into more details of the issue which is  presently  seized  of
in appeal before the Division Bench in  the  two  pending  appeals  for  its
decision on merits, we are of the view that the High Court should  not  have
passed the interim order of the nature which is  impugned  herein.  Instead,
in our view, having regard to  the  factual  scenario,   it  could  at  best
direct the parties to  maintain  status  quo  as  existed  on  the  date  of
impugned order, i.e., 25.04.2016 in relation to petrol pump. On  perusal  of
documents filed herein, we find  that  the  appellant  (a  widow)  has  been
running the petrol pump in question for more than a year. In  this  view  of
the matter, the prime facie case, balance of  convenience   and  irreparable
loss was more in appellant’s favour rather than   in  favour  of  respondent
No. 2.
7.    We accordingly allow the appeal, set aside the  stay  granted  by  the
Division Bench and instead direct the parties  to  maintain  status  quo  as
existed on the date of the  order,  i.e.,  25.04.2016  in  relation  to  the
subject matter of the appeal, i.e., Petrol Pump located between Km stone 94-
9 on S H 11 (at S.N. 115) at Sonepat as specified in Ann. P-1  advertisement
 notice.
8.    We request the High court to hear both the appeals, i.e., LPA No.  649
of 2016 (O&M) and LPA No. 650 of 2016 (O&M)  expeditiously  uninfluenced  by
our observations as these observations are made  only  for  the  purpose  of
deciding stay but not the merits of the controversy, which is presently  sub
judice in two appeals before the High Court.




.……...................................J.
                                     [ABHAY MANOHAR SAPRE]


                     ………..................................J.
                                      [ASHOK BHUSHAN]
      New Delhi,
      May 16, 2016.
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