ABRAHAM LUKOSE Vs. MALLAPPALLY SERVICE COOP. SOCIETY LTD.

JUDGEMENT

(1.) The common order passed by the Division Bench of the High Court of Kerala in writ appeals is under challenge before us in these appeals. The appellant in CAs Nos. 2613-15 of 1998 was the 4th respondent in the writ petition and the respondent Society was the writ petitioner in one of the writ petitions. In CA No. 2616 of 1998, the respondent Society is the appellant and the appellant in CAs Nos. 2613-15 of 1998 is one of the respondents in CA No. 2616 of 1998.

(2.) Indian Oil Corporation invited applications for allotment of gas agency in Mallapally, Kerala State on 21.8.1993. The appellant in CAs Nos. 2613-15 of 1998 and the respondent Society in these appeals, both applied for allotment of gas agency along with some others. The Oil Selection Board (Kerala and Lakshadweep), consisting of a retired High Court Judge as Chairman and two other members, conducted interview and selected the appellant for the agency and he was awarded the gas agency. Pursuant to the same, he opened distributorship on 30.5.1994. The persons who were not successful in getting the agency, including the respondent Society challenged the selection of the appellant by filing writ petitions before the High Court. The learned Single Judge of the High Court set aside the selection made in favour of the appellant on the grounds: (i) the assessment in the interview was not properly done by the two members, (ii) the respondent being a cooperative society, ought to have been given preference, (iii) the selection of the appellant was vitiated on that account. Hence, the allotment of the agency was cancelled and the Oil Selection Board was directed to consider applications afresh for awarding of the agency. Aggrieved by the order of the learned Single Judge, the appellant as well as the respondent filed writ appeals. The appellant made grievance against the order of the learned Single Judge in relation to the findings recorded and also as to the remand made for fresh selection. The respondent was aggrieved by the order to the extent of remanding for fresh selection. According to the respondent, after cancelling the agency made in favour of the appellant, it ought to have been straight away granted to them. The Division Bench of the High Court under the impugned order, on consideration of the rival contentions, concluded that the learned Single Judge was wrong in substituting his opinion in the matter of awarding the marks on the ground that the members had awarded the marks arbitrarily. The Division Bench also found fault with the order of the learned Single Judge, dealing with the question of preference to be given to the respondent Society. Having held in favour of the appellant on the abovementioned two grounds, the Division Bench maintained the order passed by the learned Single Judge in remanding the matter to the Selection Board for fresh consideration of the whole matter on its merits uninfluenced by any observation or finding given by the learned Single Judge.

(3.) Learned Senior Counsel for the appellant urged that merely because there was variance in awarding of marks by the Chairman and two members of the Selection Board, it could not be concluded that there was any mala fides on the part of the two members in awarding the marks in favour of the appellant particularly when the details of mala fides were not given and the two members against whom the mala fides were alleged were not made parties. He pointed out that the preference could be given to the respondent Society all things being equal but on merits the appellant had secured more marks than the respondent Society. He added that the respondent Society did not satisfy one of the eligibility conditions as it did not make profits for the previous three consecutive financial years; after the making of application for allotment of gas agency, the respondent Society having become a banking company cannot do business of running gas agency in view of the provisions contained in the Banking Regulation Act, 1949.