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2009 DIGILAW 920 (ALL)

NASEEM AHMAD v. INDIAN OIL CORPORATION LTD

2009-03-27

DILIP GUPTA, S.K.GUPTA

body2009
S. K. GUPTA, J. This writ petition has been filed, for the following reliefs: (a) to issue a writ, order or direction in the nature of mandamus commanding and directing the respondents No. 1 and 2 to restore the petroleum products to the filling station of the petitioner in the name of M/s Naseem Filling Station situated at Naibasti, Naugama Sadat, district Jyotiba Phule Nagar and continue to make the supply of the same. (aa) to issue a writ, order or direction in the nature of mandamus commanding and directing the respondents No. 1 and 2 to renew the licence No. UP-3812a of the petitioner by accepting the requisite licence fee and issue to the same to the petitioner. (b) to issue a writ, order or direction in the nature of mandamus commanding and directing the respondents No. 1 and 2 to decide the representations of the petitioner and restore the supply of the petroleum products to his outlet. " 2. During the pendency of the writ petition, by way of amendment, the petitioner has also prayed for a direction upon the respondent No. 1 and 2 (in short corporation) to renew the licence No. UP-3812a of the petitioner after accepting the requisite licence fee. 3. The background facts in nutshell are as under: The licence dated 30-5-1978 was granted by the General Manager of the Corporation in favour of M/s Naseem Filling Station, Naibasti, Naugama Sadat, Moradabad (in short "proprietorship firm") which was a proprietorship firm, of which the petitioner was the Proprietor. After the issuance of licence in favour of the proprietorship firm the Corporation started supplying the petroleum products to the licensee in accordance with the terms and conditions of the licence. In the year 1980 without the approval of the Corporation the proprietorship firm was reorganized as a partnership firm in the name and style of M/s Ansar Filling Station, Naibasti, Naugama Sadat, after inducting respondent No. 3, Abdul Rashid, as one of the partners along with the petitioner. Thereafter, it appears that some dispute arose between the petitioner and Abdul Rashid, which led to the filing of a suit by Abdul Rashid, against the petitioner in the Civil Court and an interim injunction was granted against the petitioner in the said Suit No. 6 of 1982. Thereafter, it appears that some dispute arose between the petitioner and Abdul Rashid, which led to the filing of a suit by Abdul Rashid, against the petitioner in the Civil Court and an interim injunction was granted against the petitioner in the said Suit No. 6 of 1982. The matter reached before this Court by way of F. A. F. O. No. 112 of 1982 against the interim injunction order and the appeal was allowed against Abdul Rashid. 4. It appears that some interim injunction was also granted by the Civil Court by order dated 30-1-1984 against the Corporation which was challenged by Corporation before this Court in FAFO No. 164 of 1984. However the said appeal was dismissed as not pressed and subsequently the Suit No. 6 of 1982 was also dismissed in default. 5. The petitioner by way of amendment has filed a document dated 24-10-1982 to show that the renewal of the storage licence No. 3812a was made on 24-10-1983 for a period of two years and has prayed, that the licence of the petitioner be renewed. 6. Learned counsel for the petitioner has submitted that once the storage licence of petroleum product was renewed for a period of two years in 1983, the petitioner was fully entitled to get his licence renewed. It is further submitted that Corporation is illegally and arbitrarily not renewing the licence of the petitioner since for the last 24 years as such the direction be given to the Corporation to renew the licence of the petitioner for carrying on the business of retail outlet. 7. On the other hand learned counsel appearing for the Corporation has referred to paragraphs 6 and 7 of the counter affidavit and has submitted that the licence of the petitioner was cancelled long time back on 12-9-1983 for contravening the terms and conditions of the licence. It was further submitted that the petitioner had re-organized the proprietorship firm by changing the constitution of the above firm into a partnership firm by inducting Abdul Rashid as one of the partners without complying with terms and conditions of the licence. For ready reference paragraphs 6, 7, 8 and 9 of the counter affidavit are reproduced below: "6. It was further submitted that the petitioner had re-organized the proprietorship firm by changing the constitution of the above firm into a partnership firm by inducting Abdul Rashid as one of the partners without complying with terms and conditions of the licence. For ready reference paragraphs 6, 7, 8 and 9 of the counter affidavit are reproduced below: "6. That during the period when litigation was going on, an order dated 12-9-1983 was passed by the General Manager, Indian Oil Corporation Limited, stating that the petitioner has reorganized proprietary firm by changing the constitution of the above firm without complying with the legal formalities as has been stated in the appointment letter issued to the petitioner. In clause (6) of the appointment letter it is mentioned that "you shall not inter into any agreement, contract or understanding whereby your operations hereunder are or may be controlled carried out and/or financed by any other person, firm or company whether directly or indirectly and whether in whole or in part. It is further submitted in para (b) of clause (6) that "you shall not effect any change in your constitution whether in the identity of your partners/members or in the share/share holding of any of them or in the terms of the deed of partnership or of bye-law as the case may be. " 7. That the aforesaid clauses were violated by the petitioner and as such, as stated above, the dealership of the petitioner has been terminated by the General Manager of the Corporation vide his letter dated 12-9-1983. A true copy of the letter dated 12-9-1983 issued by the General Manager of the Corporation is annexed herewith and is marked as Annexure-CA1 to this counter affidavit. 8. That these facts were deliberately concealed by the petitioner in the writ petition filed by him. Unless and until the petitioner challenges the aforesaid termination order dated 12-9-1983 he is not liable for his supply and as such the writ petition is liable to be dismissed. 9. 8. That these facts were deliberately concealed by the petitioner in the writ petition filed by him. Unless and until the petitioner challenges the aforesaid termination order dated 12-9-1983 he is not liable for his supply and as such the writ petition is liable to be dismissed. 9. That in this connection it is respectfully submitted that the fact of dealership of the petitioner has already been terminated on 12-9-1983 is in the knowledge of the petitioner since a First Appeal From Order was filed by the Corporation before this Honble Court against the order dated 31-1-1984 and in support of the aforesaid First Appeal From Order an affidavit was also filed and in para 9 of the affidavit there is mention of order dated 12-9-1983 and the said order was also annexed as Annexure-3 there to. " 8. On the strength of the aforesaid averments it was further submitted by the learned counsel for the Corporation that though the licence was cancelled in the year 1983 but the petitioner despite having full knowledge of the said order dated 12-9-1983 did not choose to challenge the said order. It was specifically stated in paragraph 9 of the counter affidavit that the cancellation order dated 12-9-1983 was filed by the Corporation along with an affidavit in FAFO No. 164 of 1984, but the petitioner till date has not challenged the same order but chosen to file the present writ petition, after a lapse of about 19 years for a direction to Corporation to renew the licence. It was further submitted by the learned counsel for the Corporation that the proprietorship firm in whose favour the licence was granted by the Corporation for running a retail outlet, was converted into a partnership firm without any previous written consent of the Corporation and, therefore, the Corporation was fully justified in cancelling the retail outlet of the petitioner. 9. Elaborating his argument, further submission was made that renewal of storage licence for a period up to 31 -12-1985 is not also relevant and does not in anyway help the petitioner. 9. Elaborating his argument, further submission was made that renewal of storage licence for a period up to 31 -12-1985 is not also relevant and does not in anyway help the petitioner. It was pointed out that storage licence No. UP-3812a was issued by the concerned authority in favour of Indian Oil Corporation Limited, Bareilly for storage of petroleum product and not in favour of the proprietorship firm, although by covering letter dated 24-10-1983 information was forwarded to the proprietorship firm about the renewal of the storage licence. It is further submitted that after the cancellation of the licence of retail outlet, renewal of storage licence will not in any way restore the licence of retail outlet in favour of the petitioner unless and until the order cancelling the licence of retail outlet is revoked or cancelled. 10. We have heard learned counsel for the parties and have perused the record. 11. Bare perusal of the record clearly shows that the licence was granted in favour of the proprietorship namely M/s Naseem Filling Station, Naibasti, Naugama Sadat, Moradabad (Now J. P. Nagar), of which the petitioner was the Proprietor. Further there is nothing on record to suggest that at any time permission was ever sought by the proprietorship firm to convert it into partnership firm nor any such permission of the Corporation has been placed on record. Thus, it can be safely inferred that reorganization of the proprietorship firm by changing the constitution of the firm into a partnership firm was in utter violation of the terms and conditions of the appointment letter/licence for running the retail outlet. 12. Thus, in light of the aforesaid circumstances, the Corporation was fully justified in cancelling the licence of the partnership firm for running the retail outlet. It may also be added that despite the order of cancellation passed in 1983 the petitioner till date has not challenged the order of cancellation dated 12-10-1983 even though the same was filed by the Corporation in the appeal before this Honble Court in the year 1984 and moreover the petitioner himself has mentioned in the rejoinder affidavit that he had written a letter dated 6-10-1983 to the Corporation after receiving the cancellation order requesting the Corporation not to take any action on the basis of the letter dated 12-9-1983 whereby the appointment letter of the petitioner to run retail outlet was cancelled. 13. 13. Learned counsel for the petitioner has tried to impress upon the Court that the letter dated 12-9- 1983 was not actually a cancellation order but was merely a show cause notice. We have given our anxious consideration to the argument advanced by the learned counsel for the petitioner and perused the letter dated 12-9-1993. It clearly mentions that the dealership of the petitioner was being terminated by giving 30 days advance notice. For ready reference relevant portion of termination notice dated 12-9-1983 is reproduced below: "since you have contravened the above terms and conditions of the appointment letter and in exercising outright under the above noted clause, we hereby terminate your dealership by giving you 30 days advance notice of termination from the date hereof and on the expiry of the notice period your dealership will stand terminated/revoked on 12-10-1983. You are hereby called upon to settle all your accounts with the Corporation and immediately handover/return and redeliver the outfit and all goods/properties and effects belonging to the Corporation lying installed at the Retail Outlet premises. In this connection, my duly authorised representative would be calling on you shortly. " 14. Bare perusal of the aforesaid termination notice clearly shows that the letter dated 12-9-1983 was not merely a show cause notice but in fact revoked the dealership on 12-10-1983. Therefore the argument of the petitioner that it was a mere show cause notice is wholly untenable, erroneous, misconceived and fallacious. 15. Lastly, the learned counsel for the petitioner has submitted that his storage licence was renewed by order dated 24-10-1983, as such by necessary implication the termination notice dated 12-9-1983 was rendered inoperative. The covering letter annexing the renewal slip clearly shows that the renewal of storage licence was valid upto 31 -12-1985 and the renewal slip provided that the storage licence No. UP-3812a was renewed in favour of Indian Oil Corporation Limited, Bareilly for storage of petroleum product for the year ending 31-12-1985. This renewal slip infact was in favour of the Indian Oil Corporation and once the licence of the petitioner to run Retail outlet was cancelled on 12-9-1983, the petitioner cannot derive any benefit from the said renewal slip. This renewal slip infact was in favour of the Indian Oil Corporation and once the licence of the petitioner to run Retail outlet was cancelled on 12-9-1983, the petitioner cannot derive any benefit from the said renewal slip. However, even if it is assumed that the licence was renewed in favour of the petitioner up to 1985, there is nothing on record to suggest that the licence in favour of the petitioner was ever renewed after 1985 and this Court cannot grant any relief to the petitioner who is seeking indulgence after the lapse of eighteen years without any justification. 16. There is one more aspect of the matter which cannot be ignored. Admittedly, the licence was granted in favour of M/s Naseem Filling Station which was a proprietorship firm but the present writ petition has not been filed on behalf of said firm M/s Nasim Filling Station but has been filed by the petitioner in his individual capacity without impleading M/s Nasim Filling Station, as the petitioner. On this ground also the writ petition is liable to be dismissed as not maintainable. 17. In view of the above, we do not find any merit in the writ petition. The writ petition is dismissed. .