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Jharkhand High Court · body

2011 DIGILAW 1080 (JHR)

Petroleum Corporation v. Union of India

2011-12-08

N.N.TIWARI

body2011
JUDGMENT By Court - In view of subsequent development, the petitioners now confine their prayer to the extent of quashing the order dated 17th March, 2010 passed by the Territory Manager, Ranchi Territory (Retail) of Bharat Petroleum Corporation limited (BPCL for short). 2. By the said order, the respondents have decided to terminate the dealership agreement of the petitioner. 3. It is relevant to mention that the petitioner no.1-M/s Petroleum Corporation is a partnership firm and licencee to deal with the retail outlet of the petroleum products, such as Motor Spirit and High Speed Diesel Oil including petrol and diesel at Nimiaghat, District - Giridih. The licence is granted by the concerned authority under the provisions of Bihar Motor Spirit and High Speed Diesel Oil Licensing Order, 1966 (hereinafter referred to as the 'Order 1966') made under the provisions of Essential Commodities Act, 1955. The licence is issued in Form - IV and the application there of is made under Form No.-II as per the provisions of Clause - V of the said Order, 1966. The respondent no. 2 is the Government Company and is authorized supplier of the aforesaid articles to the retail outlet. At the relevant time, the name of the Company was 'Burma Shell Oil Storage and Distributing Company of India Limited'. For the purpose of sale of the said articles and also as one of the conditions of licence agreement, the dealer has to enter into an agreement with the Government Company to supply the said production. Accordingly, the petitioner - Firm had entered into an agreement with the erstwhile 'Burmah - Shell Oil Storage and Distributing Company of India Limited' in the year 1963. On the basis of the agreement, the respondent - Bharat Petroleum Corporation Limited used to supply the said petroleum products and the petitioner Firm used to sell the same through its retail outlet at Nimiaghat. The petitioner continued the said outlet business till December, 2007. As per the statutory requirement, the licence has to be renewed periodically by filing application in Form, - II and the application is accepted after certification of the supplier. For renewal of licence for 2008, the petitioner - Firm filled up Form - II and submitted the same to respondent no. 2 for signing the certificate, appended to Form - II. The same was not signed and no reason was assigned for not signing the same. For renewal of licence for 2008, the petitioner - Firm filled up Form - II and submitted the same to respondent no. 2 for signing the certificate, appended to Form - II. The same was not signed and no reason was assigned for not signing the same. The petitioner being aggrieved moved this Court and filed the instant writ petition in 2008. 4. During pendency of this writ petition, the respondents by the impugned order dated 17th March, 2010 took decision to terminate the petitioners' dealership agreement. In view of the said subsequent development It, the petitioners got their prayer amended and challenged the impugned order. 5. The main ground for challenge to the order is that the petitioners were not given opportunity of hearing before issuing the said order and the order being violative of the principle of natural justice is non - est. 6. Mr. Indrajeet Sinha, learned counsel, appearing on behalf of the petitioners, submitted that there was is latent violation of the principles of natural justice in terminating the dealership agreement by not giving the petitioners sufficient opportunity of hearing. 7. Learned counsel submitted that it is evident from the impugned order dated 17th March, 2010 that the respondents themselves had decided to give an opportunity of hearing and comply with the principles of natural justice. For that purpose, hearing was adjourn on two dates and notice dated 17th April, 2009 was issued to the petitioners fixing 27th April, 2009 for hearing. The petitioners had responded to the said notice and prayed for fixing some other date on the ground that on the same date i.e. 27th April, 2009 the instant writ petition was listed in the Court and the petitioner no. 2 preferred to attend the instant writ petition. Learned counsel submitted that since the said respondents are parties to the writ petition, they had knowledge that the writ petition is fixed in this Court for 27th April, 2009, the said date was deliberately fixed by the respondents only in order to deprive the petitioners of opportunity' of hearing. 8. It has been submitted that despite the knowledge of the listing of the case in this Court and the prayer made by the petitioners to adjourn hearing on 27th April, 2009 under that compelling circumstance, the said respondents closed the hearing and passed the impugned order. 8. It has been submitted that despite the knowledge of the listing of the case in this Court and the prayer made by the petitioners to adjourn hearing on 27th April, 2009 under that compelling circumstance, the said respondents closed the hearing and passed the impugned order. The respondents thereby deliberately deprived the petitioner of opportunity of hearing, which they themselves had decided to provide and comply with the requirement of the principles of natural justice. 9. It has been submitted that the impugned order is wholly arbitrary and violative of principles of natural justice and is liable to be quashed. 10. The respondent nos. 2 to 4 have contested this writ petition by filing counter affidavit. It has been stated, inter alia, that the petitioners had made repeated violation of the terms of agreement for which notice was issued to them. Opportunity was given to file explanation. The petitioners had filed explanation. In spite of that, the respondents -Company had decided to provide opportunity of hearing in compliance with the principles of natural justice and for that purpose, had fixed three dates of hearing but the petitioners evaded appearance on all the dates. The notice dated 17th April, 2009 was issued mentioning therein that on their failure to attend the hearing, the Company will be at liberty to initiate action as may be deemed fit. When the petitioners did not attend the hearing on 27th April, 2009, which was the last date fixed by the respondents the impugned order was passed deciding to terminate the petitioners' agreement. The order is well considered and supported by speaking reasons and the same has been passed after considering the petitioners' explanation to the show cause notice issued by the respondents. There was proper compliance of the principles of natural justice. There is no arbitrariness or illegality in passing the impugned order. 11. Mr. V. Shivnath, learned Senior Counsel assisted by Mr. M.K. Roy, learned counsel, appearing on behalf of the respondents, submitted that the notice fixing the date was intended to provide an opportunity in compliance with the principles of natural justice. There was due compliance of principles of natural justice by issuing notice to show cause to the petitioners and passing the impugned order after considering the explanation filed by the petitioners. There was due compliance of principles of natural justice by issuing notice to show cause to the petitioners and passing the impugned order after considering the explanation filed by the petitioners. Learned counsel submitted that from the records, it is evident that despite giving repeated opportunity, the petitioners evaded appearance and did not turn up for hearing. They could have attended the hearing on the last date fixed i.e. 27th April, 2009, but they deliberately avoided to appear. It has been submitted that the order of termination has been passed after considering the relevant aspects properly examining the explanation filed by the petitioners, which was not found satisfactory. It has been submitted that there is no illegality or arbitrariness in the impugned order. 12. I have heard learned counsel for the parties. The petitioners have challenged the impugned order dated 17th March, 2010 mainly on the ground that the decision has been taken behind their back and without giving them sufficient opportunity of hearing. It has been submitted by learned counsel for the petitioners that the prayer for adjournment of hearing on 27th April, 2009 was made well in advance, which has been also brought on record by the respondents in their reply to the I.A. No. 1847 of 2010 as Annexure - A to this writ petition. The adjournment was sought on the ground that the petitioner had to attend their case and it was within the knowledge of the respondents, who are the parties to the writ petition, that the instant writ petition was listed for 27th April, 2009. They had fixed the said date inspite of full knowledge that the petitioners will prefer to attend the instant writ petition to assist their counsel, if so required. The respondents could have accepted the request of the petitioners and should have fixed other date, but in stead, they passed the impugned order behind the back and without hearing to the petitioners. The plea that the petitioners were given opportunity to file their show cause reply and that there was full compliance of the principles of natural justice is itself falsified the fact that the respondents - Company themselves had decided to give opportunity of personal hearing in compliance with the principles of natural justice. 13. The plea that the petitioners were given opportunity to file their show cause reply and that there was full compliance of the principles of natural justice is itself falsified the fact that the respondents - Company themselves had decided to give opportunity of personal hearing in compliance with the principles of natural justice. 13. The respondents have also stated that in all fairness and to comply with the principles of natural justice, they had decided to give personal hearing to the petitioners. It is an admitted fact that responding to the notice dated 17th April, 2009, the petitioners had requested for fixing another date of hearing in view of the fact that on 27th April, 2009 was the date on which the instant writ petition was to be heard. There was no reason for disbelieving the said ground for adjournment as it was within their knowledge that the instant writ petition was to be listed on 27th April, 2009. 14. In view of the above, I find that the respondents were not fair in denying one opportunity, prayed for by the petitioners. It is admitted that the order has been passed without hearing the petitioners. The impugned order is, thus, violative of principles of natural justice and is wholly arbitrary and illegal. 15. The impugned order dated 17th March, 2010 is, accordingly, quashed. This writ petition is allowed. 16. It is made clear that" notwithstanding quashing of the impugned order, the respondents are at liberty to proceed against the petitioners in accordance with the procedure established by law.