Md. Musir Ahmed @ Md. Musir Ahmed ... vs Indian Oil Corporation Limited & ...
2023 Latest Caselaw 5019 Cal

Form J(2)      IN THE HIGH COURT AT CALCUTTA
              CONSTITUTIONAL WRIT JURISDICTION
                             Appellate Side


Present :
The Hon'ble Justice Bibek Chaudhuri


                        WPA 17594 of 2023

      Md. Musir Ahmed @ Md. Musir Ahmed Sardar & Anr.
                              Vs.
              Indian Oil Corporation Limited & Ors.


Mr. Suman Dey
          ..for the petitioner

Mr. Siddhartha Banerjee
Mr. Jyoti Rauth
Mr. Rakib Hussain Khan
Mr. Anjan Bhandari
            ..for the Respondent

Item No.08

Heard & Judgment on:          14.08.2023

Bibek Chaudhuri, J.

Affidavit of service be kept with the record.

The issue involved in the instant writ petition is as to whether

any subsequent change in the distributorship which has been denied

in the letter of intent (LOI) should be considered as a mere

irregularity or substantial illegality resulting in cessation of LOI by the

Oil Company.

Now, the facts in brief to elucidate the issue that requires to be

answered in the instant writ petition as per narration in the first

paragraph of this judgment.

Indisputably, the petitioner was selected for distributorship of

LPG cylinders as per draw of lot and LOI was issued in favour of the

petitioner No.1 on 24th April, 2019. After receiving LOI the petitioner

No.1 executed a deed of partnership on 9 th February, 2021 inducting

one Md. Rofikul Hassan Molla. The petitioner No.2 herein is a partner

and declared that both the petitioners would run LPG distributorship in

the partnership business. It is further not disputed that paragraph 5.4

of the LOI stipulates:-

"You are not permitted to induct anyone as your

partner nor make change in the constitution of the proposed

distributorship in a manner other than what was intended at

the time of application, without prior approval from the

Corporation."

Thus, paragraph 5.4 is explicitly clear that in order to change

the nature of business from proprietorship to partnership, prior

permission shall have to be taken by the distributor and only after

receiving approval from the Corporation, the said business can be

converted from proprietorship to partnership. Materials on record

suggest that both the petitioner Nos.1 and 2 executed a deed of

partnership on 9th February, 2021 solely for the purpose of running

the distributorship of LPG.

The learned advocate for the petitioner submits before me that

previously on rejection of the petitioner's representation on 19 th July,

2022 and consequent withdrawal of the letter of intent given to the

petitioner, both the petitioners moved WPA 771 of 2023 wherein a

Co-ordinate Bench was pleased to dispose of the said writ petition

directing the IOC to consider the representation made by the

petitioners on 29th December, 2022 and to pass a reasoned order

thereon after giving an opportunity of hearing to the petitioners within

a period of four weeks from date. There is a specific rider in the order

passed by the Co-ordinate Bench in the above mentioned writ petition

that the decision shall be grounded on the existing policy of the IOC

on reconstitution of the partnership deed and a particular fact of the

case.

As per the direction of this Court in the aforesaid writ petition

the respondents considered the case of the petitioners and rejected

the representation and recalled the letter of intent. It is submitted by

the learned advocate for the petitioner that the said reasoned order is

nothing but a replica of the earlier order of rejection of LOI without

considering the guidelines for reconstitution of LPG distributorship -

2022 published by the Indian Oil Corporation, the respondent herein.

I have gone through the entire record meticulously. It is

already recorded that the restrictive clause in the letter of intent

stipulates that if the distributor wants to change the nature of his

business from proprietorship to partnership, prior approval of the IOL

is necessary. The approval was not taken. On close reading of the

order dated 20th April, 2023 in WPA 771 of 2023 a Co-ordinate Bench

clearly directed that the decision shall be grounded on existing policy

of the IOC on reconstitution of partnership deeds. The existing policy

which is a matter on record is the stipulation or conditions laid down

in the letter of intent. The Co-ordinate Bench never directed the IOC

to dispose of the case on the basis of guidelines for reconstitution of

LPG distributorship -2022.

The learned advocate for the IOL in course of his argument

refers to the daily proceeding while disposing of the representation

filed by the petitioners as per the order passed in WPA 771 of 2023

and took me to the recordings where the petitioner No.1 accepted

that mistake has been done while inducting a partnership without

prior approval from the Corporation, but requested to grant another

opportunity. Thus, the distributor already accepted his mistake. In

view of such acceptance the representation filed by the petitioners

was rejected.

Lastly but not the least LOI was granted in favour of the

petitioner No.1 in the year 2019. Partnership deed was executed

without approval of the Corporation in the year 2021. The guideline

for reconstitution of the LPG distributorship came into effect on and

from 27th May, 2022. Therefore, the said guideline is not applicable in

the instant case considering the fact that the petitioner No.1 changed

the nature of business from proprietorship to partnership without

approval of the IOL in violation of clause 5.4. This Court does not

have any scope to reconsider the findings made by the competent

authority being Indian Oil Company.

In view of such circumstances, the instant writ petition is

summarily dismissed.

(Bibek Chaudhuri, J.)