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2020 DIGILAW 367 (ALL)

Ziaul Islam v. Union of India

2020-02-04

AJIT KUMAR, RAMESH SINHA

body2020
JUDGMENT : 1. Sri Ishan Shishu, learned Advocate, has filed his memo of appearance on behalf respondent no.1-Union of India today in Court, which is taken on record. 2. Heard Sri Prabhakar Awasthi, learned counsel for the petitioner, Sri Anand Tiwari, learned counsel appearing for the respondents Corporation, Sri Ishan Shishu, learned counsel appearing for respondent no.1-Union of India and perused the record. 3. By means of this writ petition, under Article 226 of the Constitution of India, the petitioner has questioned the order dated 21st August, 2019 (Annexure No.17 to the writ petition) passed by the Executive Director, UPSO-II of the Indian Oil Corporation, namely, the respondent No.3 disposing of the complaint of the petitioner dated 1st August, 2018 in compliance of the order of this Court dated 23rd May, 2019 passed in Writ-C No.17850 of 2019, holding the complaint to be devoid of any merits besides being barred by limitation and laches. 4. The facts of the case can be drawn in a narrow compass like this that a partnership firm constituted as M/s. Siyana Filling Station, Garh Siyana Road was commissioned with a retail outlet of the petroleum products on 1st January, 1970. The partnership firm had partners, namely, Ziaul Islam and Sri Viquarul Islam. On 9th August, 1990 a request was made to the Corporation for recognizing the change in the constitution of the firm with Sri Mashqoorul Islam as a new partner with existing partner Sri Ziaul Islam having partnership of 49 % and 51% respectively and Sri Viquarul Islam was shown as to have resigned from the partnership firm. The approval was accorded to the request of the new partnership firm by the Company vide its letter dated 28th March, 1992 and a dealership agreement got executed with new set up on 25th March, 1992. It appears that soon thereafter on 12th May, 1994 another request was made on behalf of the firm M/s. Siyana Filling Station of the reconstitution of the firm with existing partners Sri Mashqoorul Islam and Smt. Tahira Choudhary, W/o Mashqoorul Islam as a new partner with share of 49% and 51% respectively and this time Ziaul Islam, who is the petitioner before this Court, was shown to have resigned from the firm. Ever since then the firm started working in the name of M/s. Siyana Filling Station with new partnership firm with Sri Mashqoorul Islam and Smt. Tahira Choudhary as partners. 5. This above partnership agreement between the firm and the Oil Company came to be questioned, it appears for the first time by the petitioner and for the redressal of their grievance they even approached the Delhi High Court invoking extraordinary writ jurisdiction vide Writ-C No.13964 of 2018 which, however, came to be dismissed on 21st December, 2018. Thereafter, the petitioner filed another writ petition before this Court bearing number Writ-C No.17850 of 2019 seeking a direction for the disposal of his complaint dated 1st October, 2018 in accordance with law and this Court passed an order on 23rd May, 2019 directing the respondents competent authority to consider and decide the matter within a period of two months. The competent authority of the respondent Oil Company has finally disposed of the objection/complaint of the petitioner under its order dated 28th August, 2019 holding the complaint of petitioner to be baseless and devoid of merits and hence this petition. 6. Assailing the order rejecting the objection of the petitioner, it has been vehemently urged by the learned counsel for the petitioner that the complaint and the point raised in the complaint has virtually remained unaddressed to in the order passed by the respondent competent authority and, therefore, on merits the order is quite unsustainable. It is argued that the respondents have got carried away by the order passed by the Delhi High Court dismissing the writ petition and the delay involved in the matter in approaching the authority. 7. Per contra, learned counsel appearing for the respondents has defended the order for the reasons assigned therein. It has been vehemently urged by the learned counsel for the respondents that the matter relates to the rights between the parties for which the proper course would have been to avail a common law remedy but since the petitioner knew that any suit seeking declaration of the partnership agreement to be void had become barred by law of limitation, the present writ petition has been filed. It is thus argued that if the time has run out and the suit is barred by limitation, the civil rights flowing from any document cannot now be tested in writ proceedings and, therefore, it is submitted that the writ petition deserves to be dismissed. 8. Having heard learned counsel for the parties, their arguments across the bar and having perused the records, what we find is that the basic question involved in the matter is the validity of the partnership agreement between the Sri Mashqoorul Islam and Smt. Tahira Choudhary, namely, the respondent nos. 5 & 6 respectively and the agreement between the Oil Company and the said firm for continuation of the retail outlet dealership, entered on 13th June, 2000. The question therefore is whether such an agreement is void and no right can flow from it and the earlier partnership agreement to which the petitioner was a party should have continued and consequently the dealership agreement dated 13th June, 2000 should also be rendered void. 9. The settled legal position is that in civil jurisprudence if the rights between the litigating parties flow from an instrument, it is necessary to get it declared valid by a Court of Law competent to pass a declaratory decree to that extent. Similarly, if the validity of a document on the basis of which rights are claimed by the parties and being objected to by a third party to such document, then such a document is also required to be declared as void by a Court of Law competent to pass a declaratory decree to that effect. The common law remedy are meant to resolve such disputed rights between the parties by inviting evidence both written and oral and in the absence of any challenge to an instrument, a person is equally entitled to get his rights perfected through law of acquiescence or permissive action and conduct of the other party. It is when the right of one party pitted against the rights of the others which might have accrued due to passage of time, the law of limitation steps in. The Limitation Act provides limitation for a suit of declaratory decree to be 3 years from the date of knowledge. In the present case what we find is that the new partnership firm namely the respondent no 4 with partners respondent nos. The Limitation Act provides limitation for a suit of declaratory decree to be 3 years from the date of knowledge. In the present case what we find is that the new partnership firm namely the respondent no 4 with partners respondent nos. 5 and 6 entered into a agreement with the Oil Company in the year 2000, to be specific 13th June,2000 and since then the retail outlet of the petroleum product is functioning. The respondents cannot deny the knowledge of functioning of the retail outlet by the firm, to which he himself was a party prior to his resignation in the year 1994 and yet he remained silent for a pretty long time. A person who has ceased to be partner in the partnership firm and if he permits the firm to continue with new partners and enter into an agreement with the Oil Company, it would attract the law of acquiescence qua the new partnership agreement and consequently fresh agreement with the Oil Company. No representation business to an authority of Oil Company would have fetched the result of condoning the limitation because there is no law as such authorizing the authority to declare a partnership agreement to be void except a competent court of law having civil jurisdiction to that count. The petitioner remained silent and could be said to have awakened from a long slumber only in the year 2018 when he unsuccessfully knocked the door of Delhi High Court. It is not denied to the petitioner that the petition filed by him before Delhi High Court, had been dismissed. A second writ petition for the same cause of action in the garb of a representation/ complaint would not have been maintainable, however, instead of going into question of maintainability of the second writ petition as the first one having been dismissed by a High Court, we hold that the petitioner now cannot be granted relief in this petition for which a proper course would have been to approach the Civil Court of competent jurisdiction and for which the limitation has already run out. 10. The legal position in this regard is very sound that if a relief otherwise has become barred by time under common law, would not be granted in writ jurisdiction under Article 226 of the Constitution of India except where the case is of violation of a fundamental right. 10. The legal position in this regard is very sound that if a relief otherwise has become barred by time under common law, would not be granted in writ jurisdiction under Article 226 of the Constitution of India except where the case is of violation of a fundamental right. The right to property or for that matter, any other right flowing from any agreement by itself is not a fundamental right and it is all dependent upon the enforcement of such agreement and getting the right declared as maintainable only through common law remedy. We are here reminded of a judgment of Gwalior Bench of High Court of Madhya Pradesh in Venkatlal Baldeoji Mahajan Vs. Kanhiyalal Jankidas and others (AIR 1763 MP 153) in which it has been observed thus:- "It is clear that the question of laches comes in when the plaintiff seeks to obtain an equitable relief. But the principle of laches, which is based on the equitable doctrine is not applicable to a case where the Court has to determine the legal rights of a party. An objection as to delay or laches does not avail the defendant when a legal relief is sought against him except as a circumstance to show abandonment. He can or course rely on the statute of limitation but if the suit is instituted within the period prescribed by the Limitation Act his suit cannot be thrown out because of any amount of laches or delay. This position is plain enough. But if any authority is needed 1 may quote with respect a decision of Abdur Rehman J. in Krishnamachari v. Chengalraya, MANU/TN/0391/1938: AIR 1940 Mad 281 ." 11. In the case of P.S.Sadasivaswamy Vs. State of Tamil Nadu ( AIR 1974 SC 2271 ), the Apex Court has held thus:- "A person aggrieved by an order or promoting a junior over his head should approach the Court at least within six months or at the most a year of such promotion. It is not that there is any period of limitation for the Court to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time. It is not that there is any period of limitation for the Court to exercise their powers under Article 226 nor is it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claim and try to unsettle settled matters. The petitioner's petition should, therefore, have been dismissed in limine. 12. In view of the above, we decline to interfere with the order impugned in the present writ petition. The writ petition fails and is, accordingly, dismissed.