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2001 DIGILAW 1096 (PAT)

Jayaswal Brothers v. Union Of India

2001-12-07

CHANDRAMAULI KR.PRASAD

body2001
Judgment 1. Indian Oil Corporation Limited, by its communication dated 29.6.2001, addressed to the petitioners in C.W.J.C. No. 10062 of 2001 (M/s Jayaswal Brothers vs. Union of India and others) and C.W.J.C. No. 11802 of 2001 (M/s Onkarmal Satyanarain vs. Union of India and others), informed them that petitioners were appointed by it to operate their business as LKO/LDO dealer, it will not be possible to supply them high speed diesel any more. Aforesaid petitioners pray for quashing the said order and pray for issuance of a writ in the nature of mandamus commanding the respondents to supply them High Speed Diesel (herein after referred to as HSD as being done in past). 2. In C.W.J.C. No. 11109 of 2001 (M/s Styanarain Shankar Prasad vs. Union of India and others), several reliefs have been sought for but learned counsel appearing on behalf of the petitioner primarily pray for restoration of supply of HSD, which has been stopped. 3. Shorn of unnecessary details, facts giving rise to the present application are that HSD used to be supplied to the petitioners by Indian Oil Corporation. This was necessitated on account of request made by the District administration to mitigate the hardship of agriculturist living in rural area, where there was no dealer or petrol pump appointed by the Indian Oil Corporation. After the bizare incident at Mathura, where a fire took place in the oil depot and which led to loss of life and property, the matter was examined and it was found that certain petrol pumps (Motor Spirit and High Speed Diesal Retail outlets) are operating in different parts of the country, which have not been established through the Oil Companies. The Ministry of Petroleum and Natural Gas, Government of India found that "in terms of provisions of Motor Spirit and High Speed Diesel (Regulation of Supply and Distribution and Prevention of Malpractices) Order, 1998 (hereinafter referred to as the Order) delivery or sale of motor spirit or HSD can be made only to dealer of Oil Companies only from authorised retail pump outlets and the Oil Companies have to be Authorised by Central Government for sale of motor spirit or HSD to consumers or dealers. In the aforesaid premises the Central Government by letter dated 24.11.2001 wrote to the State Government to take action to close such unauthorised petrol pumps, retail outlet or any other arrangement in existence which is not in conformity with the Order. Again the Government of India, by its letter dated 7.3.2001, asked the State Government that a campaign for identifying and closing operation of such unauthorised set-ups may be launched with a view to bringing the illegal activity to an end without any delay. The Indian Oil Corporation also by its inter office memo dated 2.4.2001, directed the Heads of its organisation to immediately identify unauthorised retail out-lets which have not been established through Oil Companies. In the background of the aforesaid communications, matter was examined and it was found that petitioners were not appointed by any of the Oil Companies in respect of HSD and accordingly, by the impugned communication, petitioners were informed that since they were appointed by the Indian Oil Corporation to operate in the Business as LKO/LDO dealer, HSD shall not be supplied to them. 4. It is not in controversy that the petitioners were not appointed by any of the Oil Companies to deal in HSD. It is further not in dispute that Indian Oil Corporation supplied to the petitioners HSD from time to time and many a times such supplies were made on the intervention and recommendation of the State Government, or its functionary. It is also an admitted position that the petitioners received HSD from Indian Oil Corporation and sold it at the price fixed by it. 5. Main argument has been advanced by Shri Navaniti Prasad Singh, appearing on behalf of the petitioner in C.W.J.C. No. 11802 of 2001 which has been adopted by other counsel who had represented the other petitioners. They contend the petitioners having been supplied HSD by the Indian Oil Corporation, it shall be deemed that they were appointed dealer by it and hence the action of the Oil Companies to stop supply on the ground that they were not appointed to deal in HSD, is illegal. They submit that a person can be appointed as a dealer by notion and not necessarily it is required to be done by written instrument. They submit that a person can be appointed as a dealer by notion and not necessarily it is required to be done by written instrument. In support of the submission, reliance has been placed on a judgment of the Supreme Court in the case of Mahabir Auto Stores and others V/s. Indian Oil Corporation and others, reported in AIR 1990 SC 1031 and my attention has been drawn to para-21 of the judgment which reads as follows: "Therefore, we direct that the case of the respondent be put to the appellants, and let the respondent authorities consider afresh the submission made by the appellants firm, namly, that the existing arrangements amount to a contract by which the distributorship was continued in case of the appellants-firm without any formal contract and further that the new policy of the Government introduced in December, 1982 would not cover the appellants-firm and as such the appellant should continue. It will be sufficient, having regard to the nature of the claim, for the respondent authority to consider this aspect after taking the appellant-firm into confidence on this aspect. Nothing further need be stated or required to be done and we give no directions as to whether reasons should be recorded or hereinafter should be given. In the facts and circumstances, it is not necessary to give oral hearing or record the reasons as such for the decision. The decision should be based on fair play, equity and consideration by an institution like IOC. It must act fairly." 6. Mr. K.D.Chatterji, however, appearing on behalf of the Indian Oil Corporation submits: that although the petitioners were supplied HSD from time to time, but that itself shall not make them the dealer appointed by it in terms of Clause 2(c) of the Order. 7. Having appreciated the rival submissions, I find substance in the submission of Shri Chatterji. Clause 2 (c) of the Order, which is relevant for the purpose, reads as follows: "2 (c): dealer means a person appointed by an Oil Company to purchase, receive, store and sell motor spirit and high speed diesel oil whether or not in conjunction with any other business and shall include his representatives, employees or agents." 8. A plain reading of the aforesaid provision, makes it clear that a dealer is a person, who is appointed by an Oil Company to purchase, receive, store and sell HSD. A plain reading of the aforesaid provision, makes it clear that a dealer is a person, who is appointed by an Oil Company to purchase, receive, store and sell HSD. It is not in controversy that petitioners were never appointed by any of the Oil Companies as dealer. In the face of the statutory provision and in the absence of any document showing appointment of the petitioners as dealer, I am of the opinion that the petitioners cannot be termed as dealer within the meaning of Clause 2(c) of the Order. Once it is held so, the question is as to whether respondent Indian Oil Corporation can be compelled to supply to the petitioners the HSD, as claimed by them. I am of the opinion that the petitioners being not the dealers of Indian Oil Corporation, they have no legal right to get supply from the Indian Oil Corporation and the Indian Oil Corporation has no legal obligation to make supply to the petitioners. It is well settled that writ of mandamus can be issued only when petitioners have the legal right and the respondents corresponding legal obligation. 9. There is yet another impediment in the way of the petitioners. It is trite that no mandamus can be issued which shall result into breach of any statutory provision. HSD can be supplied to a dealer and as held earlier, petitioners are not dealers within the meaning of Clause 2(c) of the Order. Clause 2(c) of the Order, inter alia, defines malpractices in sale of HSD by a person other than dealer, a malpractice. In case, the mandamus sought for is granted, petitioners shall start selling the HSD, which in the face of the aforesaid provision of the Order, will bring their action within the mischief of malpractices. Hence, mandamus sought for will lead to violating the statutory provision and in the face of the well settled legal position, same in not permissible. 10. In view of what has been found above, I do not find any merit in any of these writ applications and they are dismissed accordingly. In the facts and circumstances of the case, there shall be no order as to costs.