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2012 DIGILAW 615 (JK)

Shanta Sharma & Sons. v. Union of India & Ors.

2012-09-28

HASNAIN MASSODI

body2012
1. Petitioner business concern is a dealer of Indian Oil Corporation having, at present, Rajouri as its area of operation. The petitioner is aggrieved that its area of operation has been curtailed/restricted in an arbitrary, unreasonable and unfair manner and seeks appropriate writ declaring it entitled to supply of 'superior kerosene oil' to cater requirements of Rajouri and Poonch Districts, Akhnoor Tehsil of Jammu District as also Jammu City and entitled to supply of superior kerosene oil in terms of Indian Oil Corporation policy reflected in memo 4062/Alloc. dated 5.8.1986. 2. The background facts are that Ex. N/Sub Ram Labhaya original proprietor of the petitioner business concern, a nominee of Director General Resettlement because of his army background was vide order dated 21.12.1974 appointed by Indian Oil Corporation as 'Superior Kerosene Oil/low diesel oil dealer for Akhnoor/Poonch. The petitioner's area of operation in the communication dated 21.12.1974 was shown as Rajouri with Poonch, Akhnoor, Kalakote, Sunderban, Chamb, Mendhar, Nowshera, Mandi and Surankote. After demise of Sh. Ram Labhaya, his wife Mrs. Shanta Sharma, stepped into his shoes and was acknowledged as dealer by the respondent Corporation. Mrs. Shanta Sharma and the respondent Corporation executed dealership agreement on 28.6.1983 wherein the area of operation was shown as Rajouri District, Poonch District and municipal limits of Jammu city. The petitioner's case is that having regard to the area of operation set out in the allotment order dated 21.12.1974 and the dealership agreement executed on 28.6.1983 as also petitioner's status as "High volume dealer", the business concern is entitled to a minimum of 250 kilo liters supply per month. 3. The petitioner is aggrieved that not only his area of operation has been curtailed/restricted but the volume of superior kerosene oil supplied to it, is decreased in violation of the Indian Oil Corporation policy dated 5.8.1986. In the body of the petition a detailed reference is made to the new dealers appointed for the areas initially falling within the petitioner's area of operation as delineated in allotment order dated 21.12.1974 and the dealership agreement. 4. The respondents in their reply take a threshold objection to the maintainability of the petition on the ground that in terms of arbitration clause (para 28 of the dealership agreement) the dispute is to be resolved through arbitration and the petition accordingly is not maintainable and liable to be dismissed. 5. 4. The respondents in their reply take a threshold objection to the maintainability of the petition on the ground that in terms of arbitration clause (para 28 of the dealership agreement) the dispute is to be resolved through arbitration and the petition accordingly is not maintainable and liable to be dismissed. 5. The writ petition is resisted by the respondents 2 to 6 on the grounds that the rights whatever available to Mrs. Shanta Sharma widow of Shri Ram Labhaya the original dealer, under the dealership agreement executed on 28.6.1983, did not devolve on her son Shri Ashish Sharma who is at present running the business concern and has filed the petition on behalf of the business concern. 6. The respondents 2 to 6 insist that in terms of dealership agreement, the Indian Oil Corporation is competent to reduce or increase the area of operation of a dealer, appoint new dealer(s) and regulate supply of superior kerosene oil and low diesel oil accordingly. It is pleaded that the Indian Oil Corporation's allocation policy, relied upon by the petitioner, requires supply of 250 kilo liters of superior kerosene oil to one or more dealers operating in the district and that the supply made to cater the requirements of a district is to be apportioned amongst the dealers operating in the district. 7. Respondent No. 7 initially not impleaded as a party respondent in the writ petition and arrayed vide order dated 23.5.2012, in his reply questions the petitioner'0 right to invoke extra ordinary writ jurisdiction. Respondent No. 7 claims to have been appointed as a dealer for Poonch District v ide letter of appointment dated 10.11.1995 after he responded to the Advertisement Notice issued by the Indian Oil Corporation inviting applications from the eligible candidates for their appointment as dealer for said area. It is pleaded that the petitioners before filing the writ petition on hand filed a civil suit in the court of Munsiff Poonch wherein an injunction was sought against the Indian Oil Corporation directing it not to supply superior kerosene oil to respondents; that the suit was dismissed on 27.2.1996 for want of prosecution. It is insisted that in wake of dismissal of the civil suit, the petitioner has no right to institute fresh proceedings on the same cause of action and file the writ petition on hand. It is insisted that in wake of dismissal of the civil suit, the petitioner has no right to institute fresh proceedings on the same cause of action and file the writ petition on hand. The respondents also question locus standi of the petitioner to file and maintain writ petition, in absence of specific averments in the writ petition as regards his status in the business concern M/s Shanta Sharma and sons. It is reiterated that the Indian Oil Corporation is within its rights to curtail the area of operation as well as the volume of superior kerosene oil supplies to a dealer. 8. I have gone through the pleadings as well as record available on the file. I have heard Ld. Counsel for the parties. 9. Since the petition has been formerly admitted to hearing. The parties, because of long pendency of petition, agree on its disposal on merits instead of dealing with the preliminary objections. I, accordingly do not propose to deal with the fall out of clause 28 of the Dealership Agreement on the maintainability of the writ petition. I, on agreement of the Ld. Counsel for the parties take up the matter for its disposal on merits. 10. The petitioner's case that once a dealer is appointed by Indian Oil Corporation, it lacks power and authority to curtail/restrict or enlarge area of his/her operation or the volume of superior kerosene oil supplied to such dealer, does not sound convincing. It is fact of common knowledge that because of increase/change in population, life style, connectivity, consumer preference, consumption of an essential commodity is never static and witnesses change with each passing day. The population of Rajouri, Poonch, Akhnoor tehsil and Jammu city in the year 1974, must have seen manifold increase during last 38 years and it may no more be possible for a dealer of Indian Oil Corporation engaged in supply of superior kerosene oil and low diesel in the year 1974, to cater the requirements of the population within its area of operation because of the population explosion and other factors. It would be anomalous to insist that Indian Oil Corporation is under contractual obligation to rely on the dealer appointed 38 years back and has no right to explore the possibility of appointing new dealer(s) to ensure efficient and hassle-free distribution of the essential commodity like kerosene oil. 11. It would be anomalous to insist that Indian Oil Corporation is under contractual obligation to rely on the dealer appointed 38 years back and has no right to explore the possibility of appointing new dealer(s) to ensure efficient and hassle-free distribution of the essential commodity like kerosene oil. 11. The Indian Oil Corporation has rightly reserved to itself, under the Dealership Agreement executed with Mrs. Shanta Sharma widow of Lt. Ram Labhaya and mother of Ashish Sharma, right to curtail or restrict the petitioner's area of operation and to appoint one or more dealers for the said area. It would be appropriate to reproduce para 1-c of the dealership agreement. It reads: "The dealer will during the continuance of this agreement confine himself to selling in the area or territory specified in sub clause (a) above and such other points as may from time to time be authorized by the corporation in writing PROVIDED ALWAYS that the Corporation may from time to time, and at any time at its absolute discretion increase, reduce, restrict or otherwise alter the said area or territory and at any time at its absolute discretion increase, reduce, restrict or otherwise alter the said area or territory and nothing herein contained will be deemed to restrict the right of the Corporation to appoint other Dealers for the whole or part of the said area or territory. The Corporation will be entitled to make direct or indirect sale to any person whomsoever and for appointing other dealer for the purpose of direct or indirect sale in which event the Dealer would not be entitled to any claim for commission or allowance for any such direct or indirect sales not made through the Dealer." 12. The proposition forwarded by the petitioner and elaborated upon by his counsel therefore runs against the public policy as also the Dealership agreement. 13. It is pertinent to point out that Mrs. Shanta Sharma who was acknowledged by the Indian Oil Corporation as dealer after demise of her husband Ram Labhaya, passed away on 10.2.1992. Shri Ashish Sharma her son who has filed the present petition on behalf of the business concern M/S Shanta Sharma and sons, could not, as a matter of course, inherit the dealership from his mother Mrs. Shanta Sharma. Shri Ashish Sharma her son who has filed the present petition on behalf of the business concern M/S Shanta Sharma and sons, could not, as a matter of course, inherit the dealership from his mother Mrs. Shanta Sharma. He was required to work out an arrangement with the Indian Oil Corporation, get himself acknowledged as a dealer and enter into a Dealership Agreement with the Indian Oil Corporation. Shri Ashish Sharma, could only after he entered into a Dealership Agreement with the Indian Oil Corporation, enforce his rights available to him under the agreement. There is, in the circumstances, substances in the stand of the respondents that Shri Ashish Sharma lacks standing to claim and enforce rights that had not accrued to him as on the date of filing of the writ petition or to file the writ petition on hand to enforce such rights. 14. The Respondent-Corporation has appointed the Respondent No. 7 as its dealer for Poonch District in 1995. In terms of order dated 21.12.1974 and Dealership Agreement dated 12.6.1983, Poonch District fell within area of operation of petitioners business concern. The petitioner after feeble and halfhearted attempt to question the dealership in favour of respondent No. 7 and stop the superior kerosene oil/low diesel oil to respondent No. 7, lost interest in the matter and allowed the suit to be dismissed for want of prosecution on 27.2.1996. The petitioner after sleeping over the matter for ten long years, now makes an indirect attempt to question the letter of appointment of Respondent No. 7 for Poonch District. He does not seek quashment of the order whereby Respondent No. 7 was appointed as dealer for District Poonch. The petitioner without questioning the aforesaid order and throwing challenge to the appointment of Respondent No. 7 as dealer cannot ask for a superior kerosene/low dealer supplies for District Poonch where it is ceased to operate since 1995. 15. Shri Ashish Sharma, during pendency of the writ petition has on 4.11.2011 executed a dealership Agreement with the Indian Oil Corporation whereby Shri Ashish Sharma on behalf of M/s Shanta Sharma and Sons has agreed to all the conditions like curtailment of area of operation, change of the volume of supplies, that run contrary to the case set up by him in the name of the business concern in the present petition. The present area of operation of the business concern has been accepted and the Corporation given an absolute right to modify, curtail or restrict the area of operation as well as the supplies. The Dealership Agreement executed by Shri Ashish Sharma on behalf of petitioner's business concern, completely changes complexion of the matter and takes wind out of sails of petitioner's case, rendering the petition bereft of any merit. 16. For the reasons discussed above, the writ petition is dismissed. 17. No order as to costs.