Jammu & Kashmir High Court
Ratni Devi (Deceased) vs Bharat Petroleum Corp. Ltd on 22 May, 2023
Sr. No. 23
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
LPA No. 231/2018
IA No. 1/2018
Ratni Devi (deceased) .....Appellant(s)/ Petitioner(s)
represented through Kuldeep Kumar
Sharma (LR) and another
Through :- Mr. Gagan Basotra, Sr. Advocate with
Ms. Navdeep Kour, Advocate.
Vs
Bharat Petroleum Corp. Ltd. .....Respondent(s)
and others
Through :- Mr. Jugal Kishore Gupta, Advocate.
Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
JUDGMENT
(ORAL)
1. This appeal under Clause 12 of the Letters Patent is directed against the
judgment dated 23.10.2018 passed by the learned Single Judge of this
Court in OWP No. 1402/2016 titled 'Ratni Devi and another Vs. Bharat
Petroelum Corporation Limited and others'.
2. Briefly stated the facts leading to the filing of this appeal are that one
Ashutosh Kumar Sharma was appointed as retail outlet dealer for Bharat
Petroleum Corporation Limited. The outlet was established on the land
belonging to the mother and sister of the dealer, Ashutosh Kumar
Sharma. Said Ashutosh Kumar Sharma died in the year 2009 and
consequently the dealership licence was transferred in the name of
respondent No.3. The mother and sister of Late Ashutosh Kumar
Sharma also executed a Power of Attorney in favour of respondent No.3
so as to enable her to collect the lease rent from the Bharat Petroleum
Corporation Limited which was subsequently cancelled by the mother
and sister of Ashutosh Kumar Sharma due to some dispute that had
arisen between the parties.
3. The grievance projected by Mr. Gagan Basotra, learned Senior counsel
appearing on behalf of the appellants is that the Bharat Petroleum
Corporation Limited did not follow its rules at the time of transfer of the
licence from the name of Late Ashutosh Kumar Sharma to respondent
No.3, in that, the other legal heirs of Ashutosh Kumar Sharma were
never notified the transfer of the licence. On the respondent No.3
entering into partnership with a third person, the appellants approached
the Bharat Petroleum Corporation Limited for cancellation of the licence
on the ground that respondent No.3 by reconstituting the firm without
approval of the Bharat Petroleum Corporation Limited had violated the
terms and conditions of the licence. When no action was taken by the
Bharat Petroleum Corporation Limited, the appellants filed OWP No.
1402/2016 claiming inter alia writ of certiorari for quashing Licence
No. P/NC/JK/14/408/(P138267) issued in favour of respondent No.3
with a further writ of mandamus to direct the respondent Nos. 1 & 2 not
to transfer the dealership licence held by respondent No.3 in the name of
M/s Balotra Filling Station, College Road, Kathua in favour of
reconstituted partnership firm.
4. The writ petition was contested by the respondents.
5. The writ court after considering the rival contentions and having gone
through the record came to the conclusion that the writ petition was not
maintainable for two reasons; (i) that the violation of the terms and
conditions of the licence, if any, was an issue between the Bharat
Petroleum Corporation Limited and the licensee and the appellants were
only strangers having no locus; and (ii) that there was inordinate delay
of more than 7 years in approaching the court. The writ court vide
judgment impugned dated 23.10.2018 dismissed the petition on above
grounds. It is this order of the learned Single Judge which is called in
question before us.
6. Mr. Gagan Basotra, learned Senior counsel has reiterated his
submissions which he had made before the writ court and submitted that
the respondent No.3 by entering into a partnership with a stranger, that
too, without the permission of the Bharat Petroleum Corporation
Limited has violated the terms and conditions of the licence and,
therefore, the licence issued in her favour is liable to be
withdrawn/cancelled. He submits that appellants being a sister and
brother who was subsequently substituted in place of appellant No.1 are
the legal heirs of deceased Ashutosh Kumar Sharma and, therefore,
entitled to be issued the dealership licence in their favour. It is argued by
Mr. Basotra that the Bharat Petroleum Corporation Limited did not seek
any "No Objection Certificate" from the appellants, who were other
legal heirs of Ashutosh Kumar Sharma before transferring the licence
exclusively in favour of respondent No.3.
7. Having heard learned counsel for the parties and perused the material on
record, we are of the considered opinion that the judgment passed by the
writ court is perfectly legal and unexceptionable in the facts and
circumstances of the case.
8. Indisputably the dealership licence was originally issued in favour of
Ashutosh Kumar Sharma, who was brother of the appellants. He died in
the year 2009 and immediately after his death, the dealership licence
was transferred in favour of respondent No.3, wife of deceased-
Ashutosh Kumar Sharma. The transfer of the dealership licence from the
name of Late Ashutosh Kumar Sharma in favour of respondent No.3
was not objected to by the appellants herein or the mother of the
deceased, who was the original writ petitioner No.1. It is not out of place
to mention that the petrol pump in question is established on the land
leased out to the Bharat Petroleum Corporation Limited by the
appellants along with Late Ashutosh Kumar Sharma.
9. Be that as it may, there was apparently no dispute in the family so long
as the petrol outlet was with the respondent No.3. It seems that the
dispute arose somewhere in the year 2016 when the licence was sought
to be transferred in favour of reconstituted firm and immediately the
petition was filed. Learned Single Judge has, therefore, rightly
concluded that there was inordinate delay of more than 7 years in
approaching the court and even in raising the grievance before the
Bharat Petroleum Corporation Limited.
10. That apart, even if we were to assume that there is violation of some
term or condition of the licence by the respondent No.3, it is for the
Bharat Petroleum Corporation Limited to initiate appropriate action. The
appellants cannot be said to have any locus to claim that the licence
issued in favour of respondent No.3 should be cancelled for violation of
any terms and conditions of the licence. Needless to say, that the licence
between the Oil Marketing Company and the dealer is in the nature of
contract and it is only the parties to the contract which can raise
grievance vis-à-vis the aforesaid contract. Regarding the plea of
Mr. Basotra that at the time of transfer of licence in favour of respondent
No. 3 in the year 2009, the Bharat Petroleum Corporation Limited did
not obtain any "No Objection Certificate" from the appellants is
concerned, same needs to be considered only for rejection. This is so
because for the last more than 7 years no such grievance was ever raised
by the appellants before the Bharat Petroleum Corporation Limited.
11. We, however, find substance in the submission of Mr. Basotra that so
long as the lease subsists the appellants are entitled to receive the
proportionate lease rent from the respondents.
12. For the foregoing reasons, we do not find any merit in this appeal. The
same is, accordingly, dismissed. We, however, make it clear that so long
as the lease of land where the petrol outlet in question has been
established subsists, the lessees shall be entitled to receive the
proportionate lease rent from the Bharat Petroleum Corporation Limited.
The Bharat Petroleum Corporation Limited shall ensure that the lease
rent is paid to the rightful lessees as per proportion of their share
regularly.
13. Disposed of.
(PUNEET GUPTA) (SANJEEV KUMAR)
JUDGE JUDGE
Jammu :
22.05.2023
Pawan Chopra
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
PAWAN CHOPRA
2023.05.24 13:40
I attest to the accuracy and
integrity of this document
