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2011 DIGILAW 2218 (RAJ)

Uma Shanker Agarwal & Anr v. Union of India

2011-10-14

ALOK SHARMA

body2011
JUDGMENT 1. - This writ petition has been filed with the prayer that the respondent Bharat Petroleum Corporation (for short, the BPCL) be directed to substitute the name of the petitioners in place of their father in the selling Licence issued by the BPCL on 4.7.1980 and further direct the BPCL to continue supply of motor spirit to M/s Kapoor Chand Jain, Petrol Pump, Bandikui. 2. Succinctly stated the facts of the case are that the petitioners father Matadeen Aarwal constituted a partnership firm with one Smt. Kailaso Devi and Santosh Kumar Jain in the name of M/s Kapoor Chand Jain. 3. The firm submitted an application for allotment of a petrol pump. However, before formal allotment of the petrol pump could be made to the firm. Mr. Santosh Kumar Jain entered into an agreement on or about 4.6.1980 with Matadeen Agarwal, where under M/s Kapoor Chand Jain was to continue thereafter as a proprietorship firm of the petitioners father Matadeen Agarwal who agreed to pay rent of Rs. 1500/- per month to Santosh Kumar Jain for letting premises for the petrol pump. 4. On 4.7.1980, acting on pending application for allotment of petrol pump, the BPCL issued a licence for opening petrol pump in the name of M/s Kapoor Chand Jain. Under condition No. 20 of the selling Licence dated 4.7.1980, the effective date of commencement of business was 1.6.1980. 5. Consequently, the facts obtaining at the relevant time which emerge are that even though the selling license stood in the record of the respondent BPCL in the name of M/s Kapoor Chand Jain, a partnership firm constituted of three partners, namely, Matadeen Agarwal, Santosh Kumar Jain and Smt. Kailaso Devi, yet in actual practice from very initiation of the business of the said firm, by an agreement of the erstwhile partners and in pursuance to the agreement dated 4.7.1980, Matadeen Agarwal, petitioners father worked as Proprietor of the firm M/s Kapoor Chand Jain. It is relevant to state that Mataden Agarwal inducted himself as Proprietor in various documents and correspondence with respondent BPCL and filed all statutory returns including income tax and sales tax as proprietor of the firm M/s Kapoor Chand Jain. The certification of registration issued under the Shops and commercial establishment Act, 1958 also showed the petitioners father as proprietor. 6. The certification of registration issued under the Shops and commercial establishment Act, 1958 also showed the petitioners father as proprietor. 6. Subsequently, inspite of the agreement dated 4.7.1980, Santosh Kumar Jain took civil proceedings claiming rights in M/s Kapoor Chand Jain as partner. In the said proceedings, apart from Smt. Kailaso Devi and Matadeen Agarwal being impleaded as defendants, the respondent BPCL was also made a party. The aforesaid suits were tried and the learned trial Court on consideration of an application filed by Santosh Kumar Jain for interim relief of continuing as partner of the firm vide order dated 16.7.1983 held that Santosh Kumar Jain had no right as partner in the firm M/s Kapoor Chand Jain in view of the agreement dated 4.7.1980 and that Matadeen Agarwal was proprietor thereof. This was upheld in a Civil Miscellaneous Appeal which came to be dismissed on 18.3.1986 by the Additional District Judge, No. 5 Jaipur City, Jaipur. Subsequently, a suit No. 21A/1998 was filed by Smt. Kailaso Devi based on her purported rights as partner M/s Kapoor Chand Jain before the District Court at Bandikui. The claim of Kailaso Devi was also negatived and suit dismissed. 7. The case of the petitioner is that ever since the grant of selling licence on 4.7.1980 and in view of the agreement dated 4.6.1980 between the erstwhile partners of M/s Kapoor Chand Jain, their father had been acting as sole proprietor of M/s Kapoor Chand Jain and so defacto accepted by the respondent BPCL. It is submitted that the petitioners; father had made an investments for the growth of business of retailing motor spirit and accompanying products supplied by the BPCL. It is submitted that BPCL was a party to the civil litigations initiated both by Santosh Kumar Jain and Smt. Kailaso Devi, claiming their rights in M/s Kapoor Chand Jain as partners which claims had failed and was thus aware of the conclusions of the Civil Courts that the firm M/s Kapoor Chand Jain was a proprietorship firm of Matadeen Agarwal. 8. Counsel for the petitioners submits that since 1983, in view of the legal status of the firm M/s Kapoor Chand Jain as determined by the Civil Courts as proprietorship firm of Matadeen Agarwal, the BPCL continued to consciously supply motor spirit as per agreement dated 4.7.1980 in effect treating M/s Kapoor Chand Jain as a proprietorship firm. 9. 8. Counsel for the petitioners submits that since 1983, in view of the legal status of the firm M/s Kapoor Chand Jain as determined by the Civil Courts as proprietorship firm of Matadeen Agarwal, the BPCL continued to consciously supply motor spirit as per agreement dated 4.7.1980 in effect treating M/s Kapoor Chand Jain as a proprietorship firm. 9. Counsel further submits that however for reasons best known to BPCL it did not bring about any corresponding change in the license agreement dated 4.7.1980 and in its official record continued to wrongly treat M/s Kapoor Chand Jain as a partnership firm, even while treating it as a defacto proprietorship of Matadeen Agarwal in the business with the firm. 10. The case of the petitioner is that their father expired on 4.6.2007 and in pursuance of his last testament i.e. will dated 31.7.1996, the business of the petrol pump of M/s Kapoor Chand Jain came to their share as legacy. The petitioners submit that they have a right in law to continue the firm M/s Kapoor Chand Jain jointly as per testamentary deposition of their father and for that purpose submitted a letter for issue of selling licence in their names accordingly. The petitioners submit that when no action was taken by the respondent BPCL for the considerable length of time, subsequent to making request for issue of modified selling licence in the name of the firm M/s Kapoor Chand Jain with the two petitioners as successors to their father in the said business, a notice for demand of justice was sent under the hand of their counsel on 17.8.2007 to the respondent BPCL. Failure of the respondent BPCL to respond to the demand notice entailed the filing of the writ petition. Petitioners submit that action of the respondent BPCL in not substituting their names for that of their father and consequently not issuing selling licence as amended is wholly unwarranted and entails taking away their rights to business within the meaning of Article 19(1) (g) of the Constitution of India. 11. Petitioners submit that action of the respondent BPCL in not substituting their names for that of their father and consequently not issuing selling licence as amended is wholly unwarranted and entails taking away their rights to business within the meaning of Article 19(1) (g) of the Constitution of India. 11. It is submitted by the petitioners that the respondent BPCL had continuously made supplies to the petitioners father between 1983 to 2007 recognising him as de facto proprietor of M/s Kapoor Chand Jain, more particularly in view of the fact that in the suit before the trial Court, referred to above, in which BPCL was a party, Matadeen Agarwal had been declared to be the sole Proprietor of the firm M/s Kapoor Chand Jain. It is submitted, that the respondent BPCL is bound by the judgments/orders of the Civil Courts as it was a defendant in the suits for where Matadeen Agarwal was found to be the proprietor of the firm M/s Kapoor Chand Jain. 12. Petitioner further submits that even otherwise, having made supplies to M/s Kapoor Chand Jain between 1983 and 2007 in deviation of the formal and redundant selling agreement dated 4.7.1980, recording M/s Kapoor Chand Jain as a partnership firm of three partners, namely Smt. Kailaso Devi, Santosh Kumar Jain and Matadeen Agarwal, the respondent BPCL is estopped from taking any other view of the matter and is bound to treat the actual working of M/s Kapoor Chand Jain as proprietorship firm and overlook the formal and irrelevant office record where the firm is shown as partnership firm. Petitioners submit that there are provisions in the relevant guidelines of BPCL regarding transfer of the outlet to the legal heirs on the death of the licensee. It is submitted that the petitioners are willing to comply with all requirements of BPCL limited as to furnishing NOC from other legal heirs of Matadeen Agarwal, whom the respondent BPCL had treated as a de facto licensee proprietor of M/s Kapoor Chand Jain for over 25 years. 13. It is submitted that the petitioners are willing to comply with all requirements of BPCL limited as to furnishing NOC from other legal heirs of Matadeen Agarwal, whom the respondent BPCL had treated as a de facto licensee proprietor of M/s Kapoor Chand Jain for over 25 years. 13. The respondent BPCL has filed reply to the writ petition and submitted that the selling licence was executed between the answering respondent on the one hand and Smt. Kailaso Devi, Santosh Kumar Jain and Matadeen Agarwal as partners of M/s Kapoor Chand Jain and in record of BPCL the same status existed at all times and the record still indicates M/s Kapoor Chand Jain to be a partnership firm constituted of three partners, namely Smt. Kailaso Devi, Santosh Kumar Jain, Matadeen Agarwal. It is submitted that in these circumstances, the claim of the petitioners to treat Matadeen Agarwal as sole proprietor of the firm M/s Kapoor Chand Jain is contrary to the records and liable to be rejected. 14. Respondent BPCL further submits that the factum of dissolution of the firm under the agreement dated 4.7.1980 between the erstwhile partners of M/s Kapoor Chand Jain was never communicated to the respondent BPCL. However, the orders of the trial Court passed from time to time holding Matadeen Agarwal as Proprietor of M/s Kapoor Chand Jain have not been denied nor has the fact of BPCL treating M/s Kapoor Chand Jain as a de facto proprietorship of Matadeen Agarwal in the business dealing for over 25 years denied. 15. BPCL however seeks circumvent finality of the orders of the Civil Court and consequences thereof by a vague averments that "petitioners had failed to disclose whether there were any appeals pending qua the orders passed by the Civil Courts in the cases filed by Santosh Kumar Jain and Smt. Kailaso Devi." The respondent BPCL also rakes a wholly irrelevant stand in reply stating that the land belonging to Santosh Kumar Jain and his family, which had been rented out to the petitioners late father Matadeen Agarwal, be got vacated by the landlord and if such an event happens then retail outlet would again be involved in another round of litigation between the landlord and petitioners wherein the answering respondent corporation would again be made a party and would have to contest an unwarranted litigation. It is contended, "as such, until the issues between the petitioners and the other partners of the firm M/s Kapoor Chand Jain do not get resolved, the corporation would be unwilling to resume supply to the retail outlet." 16. It is however admitted by the respondent BPCL that late Matadeen Agarwal was running the retail outlet as a proprietary concern. The objection however appears to be that Matadeen Agarwal had never applied to the corporation for amendment in the selling licence and deletion of the name of the other two partners Smt. Kailaso Devi and Santosh Kumar Jain. It is submitted that the respondent BPCL cannot therefore recognise either late Matadeen Agarwal as proprietor of the firm M/s Kapoor Chand Jain or the petitioners as his legal heirs entitled to continue the business unless and until other partners/persons named in the selling licence, namely Kailaso devi and Santosh Kumar Jain or their successors in interest do not apply to the corporation for adding names of the petitioners in the selling licence. 17. I have heard learned counsel for the parties and perused the record of the writ petition. 18. The facts in this case and the callousness of BPCL is absolutely shocking to say the least. It is an admitted position that in the proceedings before the Civil Court, the BPCL has been a party defendant. The Civil Courts have consistently held that in view of the agreement dated 4.7.1980 the firm M/s. Kapoor Chand Jain was a proprietorship firm and that Santosh Kumar also laid suit for recovery of rent amount over due and the matter was compromised between the parties in the first instance. A subsequent suit by Santosh Kumar Jain seeking eviction of Matadeen Agarwal, on the ground of reasonable and bonafide need, non user and default was considered by the trial Court and vide order dated 30.4.1999 the learned trial Court while rejecting the grounds based on reasonable bona fide need and non user, found Matadeen Agarwal to be a defaulter in payment of rent, but as per obtaining statutory provisions, gave him benefit of first default. 19. In view of the aforesaid facts it is evident that BPCL has been aware at least since 16.7.1983 of the status of firm M/s Kapoor Chand Jain being a proprietorship firm of Matadeen Agarwal, late father of the petitioners and de facto treated it as such. 19. In view of the aforesaid facts it is evident that BPCL has been aware at least since 16.7.1983 of the status of firm M/s Kapoor Chand Jain being a proprietorship firm of Matadeen Agarwal, late father of the petitioners and de facto treated it as such. BPCL was also aware of the fact that the suit laid both by Santosh Kumar Jain and Smt. Kailaso Devi claiming their rights as partners in the firm M/s Kapoor Chand Jain were unsuccessful and there was finality to the determination by the Civil Courts on the aforesaid issues. In its reply to the writ petition, the BPCL has admitted that late Matadeen Agarwal was running retail outlet as proprietary concern for over 25 years and being supplied motor spirit for retail. 20. In view of the aforesaid factual status obtaining, it does not now lie in the mouth of the respondent BPCL to claim that the M/s Kapoor Chand Jain is a partnership firm merely on the basis of the record obtaining in its office and the selling licence dated 4.7.1980. BPCL was a party to the proceedings before the Civil Courts and is bound by the determination of the Civil Courts treating late Matadeen Agarwal as proprietor of Firm M/s Kapoor Chand Jain and Santosh Kumar Jain as lessor entitled only to rent @ Rs. 1500/- per month and as it may be enhanced in terms of the agreement dated 4.7.1980 between them. 21. In the facts of the case, there is substance in the submission of the learned counsel for the petitioners that the respondent BPCL is estopped from treating the firm M/s Kapoor Chand Jain as partnership firm and is under a legal duty to treat, in terms of the orders of the Civil Courts and its own past conduct, late Matadeen Agarwal as the then proprietor of the firm M/s Kapoor Chand Jain. It is also on record that respondent BPCL has for over 25 years engaged in business with M/s Kapoor Chand Jain as proprietorship firm of Matadeen Agarwal. On this count also, apart from decrees of the Civil Courts with which the BPCL is bound, the respondent-BPCL cannot be allowed to deny the right of Matadeen Agarwal as proprietor of the firm M/s Kapoor Chand Jain during his lifetime. On this count also, apart from decrees of the Civil Courts with which the BPCL is bound, the respondent-BPCL cannot be allowed to deny the right of Matadeen Agarwal as proprietor of the firm M/s Kapoor Chand Jain during his lifetime. Consequently, on the death of Matadeen Agarwal, the petitioners would be entitled to be considered for being substituted as legal heirs of late Matadeen Agarwal after due compliance as warranted under the BPCLs guidelines and instructions to deal with claim of substitution by the legal heirs of deceased licensee. 22. From the facts of the case it transpires that the respondent BPCL needs to put its own house in order. For over 25 years it dealt with late Matadeen Agarwal as de facto proprietor of the firm M/s Kapoor Chand Jain and did not take any action against the' licensee M/s Kapoor Chand Jain for having altered its constitution from partnership to proprietorship by agreement dated 4.7.1980. On the contrary, BPCL accepted the orders of the Courts below by not filing any appeal against the said orders of the Courts from time to time, but it did not choose to make any alterations necessitated by the orders of the Court obtaining finality. Consequently, in the record of BPCL the firm M/s Kapoor Chand Jain continued as a partnership firm contrary to the de facto situation of it being a proprietorship of Matadeen Agarwal. 23. Now for reasons best known to the respondent BPCL, in the reply to the writ petition, it has proceeded to treat the firm M/s Kapoor Chand Jain as partnership firm and requires the successors in interest of the erstwhile partners Santosh Kumar Jain and Kailaso Devi to give their consent for the substitution of the petitioners as licensees following the death of Matadeen Agarwal. 24. This Court vide order dated 10.3.2001 after having admitted the petition directed that during the pendency of the writ petition, the respondent Oil Company to supply petrol/diesel to the petitioner firm. 25. On having considered the matter I am inclined to allow the writ petition for reasons stated above. 26. 24. This Court vide order dated 10.3.2001 after having admitted the petition directed that during the pendency of the writ petition, the respondent Oil Company to supply petrol/diesel to the petitioner firm. 25. On having considered the matter I am inclined to allow the writ petition for reasons stated above. 26. Consequently, this writ petition is allowed and it is directed that the respondent BPCL consider the case of the petitioners for substitution of their names in the selling licence granted to firm M/s Kapoor Chand Jain in accordance with the decisions of the Civil Courts, holding that Matadeen Agarwal was proprietor of the firm M/s Kapoor Chand Jain. The case of the petitioners for substitution for their deceased father who was the de facto proprietor of M/s Kapoor Chand Jain recognised by BPCL be declared within four weeks of the receipt of a certified copy of this order. During the period of consideration of the case of the petitioners as per the extant instructions and guidelines for substitution of legal heirs on the demise of the existing licensee, the respondent BPCL is directed to continue making supplies of motor spirit and other assorted products in its line of business to the firm M/s Kapoor Chand Jain as it has done in the past.Petition Allowed. *******