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IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Sanjay Kumar Gupta, J.
M/s Sehkari Bhandar Co-op. Consumer Stores Ltd. - Petitioner
Vs.
Union of India & Ors. - Respondent
OWP No. 569 of 2010
Decided On : 29-01-2018
Right to Information Act - Dispute over Retail Outlet Dealership - [FACT OF THE CASE] The petitioner, a registered Society, was involved in a dispute over the allotment of a Retail Outlet Dealership by the Indian Oil Corporation. The petitioner filed a petition under the Jammu and Kashmir Arbitration and Conciliation Act, seeking communication of the CBI's recommendation for termination of the dealership. The petitioner also sought information under the Right to Information Act, which was declined by the respondents. The petitioner then filed a writ petition under Article 226 of the Constitution of India seeking various reliefs. [FINDING OF THE COURT] The court held that the writ petition was not maintainable as the petitioner had a statutory right to file a 2nd appeal under the Right to Information Act. The court also noted that the specific bar created by Section 23 of the Right to Information Act rendered the writ petition not maintainable. [ISSUES] The issues involved the refusal of information under the Right to Information Act and the maintainability of the writ petition. [RATIO DECIDENDI] The court emphasized that the petitioner had a statutory right to file a 2nd appeal under the Right to Information Act and that the specific bar created by Section 23 of the Act rendered the writ petition not maintainable. [FINAL DECISION] The writ petition was dismissed as not maintainable.
1. The case of the petitioner is that petitioner is a registered Society under the Cooperative Societies Act. S. Sudershan Singh Wazir is duly elected President of the petitioner-Society. Applications were invited by the Indian Oil Corporation for Retail Outlet Dealership at Railway Road, Jammu. Number of candidates applied for the same. Interview for the selection of this Retail Outlet Dealership was conducted by the Dealer Selection Board on 20th /21st of March, 2001. Thereafter a select list was notified in which the petitioner was placed at Sr. No. 2 and one Capt. Brij Padha at Sr. No. 1. Petitioner made a complaint against Capt. Brij Padha, the empanelled candidate at Sr. No. 1 for making false declarations which was investigated under the directions of the Dealer Selection Board. The Dealer Selection Board during the course of investigation found that the claim of Capt. Brij Padha was deficient and therefore, recommended the name of the empanelled candidate at Sr. No. 2 i.e. the petitioner Society for the allotment of the retail outlet. The allotment of Retail outlet to the petitioner was also referred for inquiry to Director General Anti Adulteration Cell, Ministry of Petroleum and Natural Gas, New Delhi which was thoroughly looked into by the Director General Anti Adulteration Cell, who after inquiry, communicated back to the Secretary, Ministry of Petroleum and Natural Gas that the allotment made was absolutely in order. Then a complaint was registered by the CBI against the President of petitioner-society along with three other persons namely P. K. Yadav and Pamposh Wattal, both officers of IOC, and third one namely Vinod malhotra, Chief Town planner JDA, on 30.8.2003 u/s 120-B read with 420, 465,468 and 471 RPC and 5(2) read with 5(1) (d) of J&K Prevention of Corruption Act. The matter was investigated and final closure report was submitted before Sp. Judge Anticorruption, which was accepted on 25.02.2005. In the meantime I/0 in the case asked vide letter dated 10.3.2005 to DIG, CBI, ACR Chandigarh for cancellation of IOCL Retail Outlet allotted to M/S SBCCS Ltd by conduction a fresh inquiry on the claims of M/S SBCCS Ltd based on which allotment was made, and to take appropriate action against P.K.Yadav the Sr. DM Jammu as deemed fit. That IOC has cancelled the petitioner’s Retail Outlet Dealership on 13.10.2005 vide communication No.JMDO/Retail.
2. The petitioner against this communication immediately filed a petition under Section 9 of the Jammu and Kashmir Arbitration and Conciliation Act because as per the agreement between the petitioner and the Indian Oil Corporation, dispute arising out of the agreement was referable to the Arbitrator in terms of Clause 67 of the Agreement. Learned District Judge vide order dated 15.10.2005 stayed the aforesaid communication with a further direction to the OIC to restore the supply. During the pendency of the petition under Section 9 of the Act, Indian Oil Corporation appointed respondent No.5 as an Arbitrator on 11.11.2005. After filing of the statement of claim, the petitioner approached the learned Arbitrator by way of an application dated 25.08.2006 seeking communication of the CBI whereby the termination was recommended. The learned Arbitrator treated the application of the petitioner as a delay tactics. The request for supply of the communication of the CBI regarding cancellation of dealership was declined. The petitioner continued insisting for the supply of the document viz copy of the CBI communication. The learned Arbitrator vide order dated 22.12.2007 communicated to the petitioner that the respondent-IOC did not supply the copy of the said CBI communication on the basis of which the order of termination was passed.
3. The petitioner is aggrieved of the orders passed by respondents No. 3 & 4 whereby the information asked for under the Right to Information Act, 2005 has been declined. The reasons given in the order is that the matter is subjudice before res
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