Leashar vs Bharat Petroleum Corporation ...
2021 Latest Caselaw 1031 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                         PRESENT

           THE HONOURABLE MR.JUSTICE N.NAGARESH

 TUESDAY, THE 12TH DAY OF JANUARY 2021/22TH POUSHA, 1942

                WP(C).No.15053 OF 2014(F)

PETITIONERS:

     1     LEASHAR, S/O.NARAYANAN, AGED 48 YEARS,
           VRINDAVANAM, CHEPPAD, KANNIMAL,
           CHEPPAD P.O., ALAPPUZHA DISTRICT - 690 507.

     2     SANGEETHA RANI, W/O.SURENDRAN R.,
           AGED 41 YEARS,PANACKAL PADEETTATHIL,
           RAMAPURAM, KURIKKAD P.O., ALAPPUZHA.

           BY ADVS.
           SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
           SRI.A.R.DILEEP
           SRI.P.J.JOE PAUL
           SRI.MANU SEBASTIAN

RESPONDENTS:

     1     BHARAT PETROLEUM CORPORATION LIMITED,
           TRIVANDRUM LPG TERRITORY OFFICE,
           REPRESENTED BY TERRITORY MANAGER,
           LPG BOTTLING PLANT, POST BOX NO.6,
           KAZHAKOOTTAM P.O.,
           THIRUVANANTHAPURAM - 695 522.

     2     TERRITORY MANAGER,
           BHARAT PETROLEUM CORPORATION LIMITED,
           TRIVANDRUM LPG TERRITORY OFFICE,
           LPG BOTTLING PLANT, POST BOX NO.6,
           KAZHAKOOTTAM P.O.,
           THIRUVANANTHAPURAM - 695 522.

     3     SHIBUKUMAR, VRINDAVANAM,
           CHEPPAD KIZHAKKUM MURI,
           CHEPPAD P.O.,
           ALAPPUZHA DISTRICT - 690 507.

           R1-R2 BY ADV. SRI.P.BENNY THOMAS
           R1-R2 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR
 WP(C) No.15053&18546/2014
                              :2 :


             R1-R2   BY ADV. SRI.K.JOHN MATHAI
             R1-R2   BY ADV. SRI.JOSON MANAVALAN
             R3 BY   ADV. SRI.V.M.KURIAN
             R1-R2   BY ADV. SRI.KURYAN THOMAS
             R1-R2   BY ADV. SRI.A.V.THOMAS SR.

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 12.01.2021, ALONG WITH WP(C).18546/2014(P), THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) No.15053&18546/2014
                              :3 :


          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

             THE HONOURABLE MR.JUSTICE N.NAGARESH

 TUESDAY, THE 12TH DAY OF JANUARY 2021/22TH POUSHA, 1942

                     WP(C).No.18546 OF 2014


PETITIONER:

              R.N.SHIBUKUMAR, VRINDAVAN, CHEPPAD,
              CHEPPAD P.O., ALAPPUZHA DISTRICT,
              PIN-690 507.

              BY ADVS.
              SRI.A.V.THOMAS (SR.)
              SRI.MATHEW B. KURIAN
              SRI.K.T.THOMAS

RESPONDENTS:

      1       BHARAT PETROLEUM CORPORATION LIMITED,
              TRIVANDRUM LPG TERRITORY OFFICE,
              LPG BOTTLING PLANT, P.B.NO.6,
              KAZHAKOOTTAM, THIRUVANANTHAPURAM-695 522,
              REPRESENTED BY ITS TERRITORY MANAGER.

      2       THE TERRITORY MANAGER,
              BHARAT PETROLEUM CORPORATION LIMITED,
              TRIVANDRUM LPG TERRITORY OFFICE,
              LPG BOTTLING PLANT, P.B.NO.6,
              KAZHAKOOTTAM, THIRUVANANTHAPURAM-695 522.

      3       LEASHAR, RADHEYAM, CHEPPAD,
              CHEPPAD P.O., ALAPPUZHA DISTRICT- 690 507.

      4       SANGEETHA RANI, PANAKKAL PADEETTATHIL,
              RAMAPURAM, KUREEKKAD P.O.,
              ALAPPUZHA DISTRICT-690 509.

          R1-R2 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR
          R1-R2 BY ADV. SRI.P.BENNY THOMAS
          R1-R2 BY ADV. SRI.K.JOHN MATHAI
 WP(C) No.15053&18546/2014
                              :4 :


          R1-R2   BY ADV. SRI.JOSON MANAVALAN
          R1-R2   BY ADV. SRI.KURYAN THOMAS
          R3 BY   ADV. SRI.GEORGE VARGHESE PERUMPALLIKUTTIYIL
          R3-R4   BY ADV. SRI.A.R.DILEEP
          R3-R4   BY ADV. SRI.MANU SEBASTIAN
          R3-R4   BY ADV. SRI.P.J.JOE PAUL

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 12.01.2021, ALONG WITH WP(C).15053/2014(F), THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) No.15053&18546/2014
                                 :5 :




                         JUDGMENT

~~~~~~~~~

Dated this the 12th day of January, 2021

[W.P.(C) Nos.15053 & 18546 of 2014]

Both these petitions have been filed by children of

late Smt. K. Lakshmi, seeking to assert their claims to run

Dhana Lekshmi Gas Agencies. Parties are referred to in this

judgment as they are arrayed in W.P.(C) No.18546 of 2014,

for convenience.

2. Late Sri. Radhakumar, son of Smt. Lakshmi, was a

soldier in Indian Army. He attained martyrdom during the

Kargil War in 1999. The Government of India, in honour of

late Sri. Radhakumar, directed the Bharat Petroleum

Corporation Limited (BPCL) to award an LPG Distributorship

at Nangiarkulangara, to mother Smt. Lakshmi under the

Operation Vijay Scheme. The BPCL issued a letter of intent to WP(C) No.15053&18546/2014

Smt. Lakshmi on 17.03.2000.

3. Issues arose between siblings of late

Sri.Radhakumar, when their mother Smt. Lakshmi passed

away on 20.02.2014. The petitioner in W.P.(C)

No.18546/2014, who is brother of late Sri.Radhakumar,

claimed that mother Smt. Lakshmi during her lifetime, had

executed a Will on 08.01.2014, under which the LPG

Distributorship and its assets were bequeathed to him. On the

basis of the said testamentary disposition, the petitioner by

letter dated 21.02.2014 requested the BPCL to appoint him as

the Distributor of LPG as a sole proprietor. Though the BPCL

initially issued a letter dated 22.02.2014 appointing the

petitioner as temporary distributor, on 12.04.2014, the BPCL

issued another communication requiring him to produce

certain documents for reconstitution. The communication

stated that the petitioner shall produce NOC from all legal

heirs. If they are not interested in operating the Distributorship

or else all legal heirs should submit their application with full

bio-data and their request for induction as partner. WP(C) No.15053&18546/2014

4. The petitioner stated that in view of the Will

executed by his mother, he exclusively is entitled to the LPG

Distributorship as a sole proprietor. The siblings of the

petitioner are not willing to issue NOC to the petitioner.

Consequently, the BPCL is not allotting the LPG

Distributorship to him. It is aggrieved by the refusal of the

BPCL to allot him the LPG Distributorship hitherto run by his

mother that the petitioner is before this Court.

5. Respondents 3 and 4 in W.P.(C) No.18546/2014,

who are brother and sister of the petitioner, filed W.P.(C)

No.15053/2014. Respondents 3 and 4 disputed the claim of

the petitioner for exclusive right over the LPG Distributorship

on the strength of the impugned Will. Respondents 3 and 4

stated that they have made a proposal for reconstitution of the

gas agency with themselves as partners. However, the BPCL

is not taking a decision. If the distributorship is terminated

without considering their representation, respondents 3 and 4

will be put to untold hardship. Therefore, respondents 3 and 4

prayed that the BPCL be directed to reconstitute the LPG WP(C) No.15053&18546/2014

Distributorship with respondents 3 and 4 as partners by

accepting the proposal made by them.

6. During the hearing, counsel for the petitioner as

well as the counsel for respondents 3 and 4 stated that the

parties have contested civil litigations wherein the validity of

the Will allegedly executed by late Smt. Lakshmi was disputed

and a competent Civil Court has found against the petitioner

and has held that the alleged Will is not valid. The said finding

has become final. During the pendency of the writ petitions,

the parties resorted to mediation for arriving at a mediated

settlement as regards their inter-se claims. But, the mediation

failed as the parties could not arrive at an agreement.

7. The learned counsel for the petitioner would

contend that the LPG Distributorship was allowed to the

petitioner's mother and the petitioner was running the

Distributorship helping his mother in the business. The

learned counsel for the petitioner would submit that the

petitioner's mother decided to give the Distributorship and its

assets to the petitioner after her death. The petitioner is WP(C) No.15053&18546/2014

therefore entitled to succeed. The learned counsel for the

petitioner would further urge that taking into account the

factual situation, the petitioner should be granted the

Distributorship even without consent of other legal heirs.

8. The learned counsel for the petitioner further

pointed out that as per Clauses 3.3.4 and 3.3.5 of the

Guidelines issued by the BPCL, in case of death of the sole

Distributor, the constitution may be made in favour of the legal

heir. If any legal heir has expressed unwillingness, the

Distributorship shall be terminated. Clause 3.3.5 provides that

if the legal heirs express unwillingness, the Distributorship

shall be reconstituted with the surviving partner. A reading of

the Guidelines would show that the legal heir gets a right to be

allotted with the Distributorship on the death of the licensee.

9. The counsel for the petitioner further submitted that

the petitioner has been successfully running the LPG

Distributorship during the life of his mother as well as

thereafter on the basis of temporary allotment. The business

is a running business and justice and balance of convenience WP(C) No.15053&18546/2014

demand that the petitioner be permitted to run the

Distributorship.

10. The counsel for respondents 3 and 4 would submit

that a conjoint reading of Clauses 3.3 to 3.7 of Ext.P2 makes it

clear that the gas agency could be reconstituted with

respondents 3 and 4 as partners, to the exclusion of the

petitioner. Since the petitioner has expressed his

unwillingness to join respondents 3 and 4 as per plans, during

the meeting held by the officials of the BPCL, respondents 1

and 2 have a right to reconstitute the Distributorship with them

as partners.

11. The learned counsel for respondents 3 and 4

further submitted that the BPCL ought to have rejected the

claim put forth by the petitioner. Since the BPCL Guidelines

provide for constitution of partnership with all legal heirs on

the demise of the approved Distributor and since the petitioner

has refused to join as a partner, the BPCL should necessarily

permit the remaining legal heirs to constitute a partnership to

run the business. In the circumstances, respondents 1 and 2 WP(C) No.15053&18546/2014

are bound to permit reconstitution of Dhana Lekshmi Gas

Agencies with respondents 3 and 4 as partners accepting the

proposal made by them.

12. The learned Standing Counsel representing

respondents 1 and 2 would submit that the Distributorship of

Smt.Lakshmi cannot be alienated or inherited. Her

Distributorship of LPG is governed by the Policy Guidelines for

Reconstitution of Retail Outlet framed by the petroleum

companies from time to time. In case of death of the sole

proprietor, reconstitution can be considered by the petroleum

companies in favour of legal heirs/family members with the

consent of all legal heirs. As one of the legal heirs has

unequivocally expressed his disagreement in joining with a

partnership inclusive of all legal heirs, as long as the

dissenting legal heir does not give his NOC, the BPCL cannot

assign the Distributorship either to the petitioner as a sole

proprietorship or to respondents 3 and 4 as a partnership.

13. I have heard the learned counsel for the petitioner,

learned counsel for respondents 3 and 4 and learned WP(C) No.15053&18546/2014

Standing Counsel appearing for respondents 1 and 2 in W.P.

(C) No.18546/2014. Clause G(4) of the Policy Guidelines for

reconstitution of retail outlet governing the 1 st respondent,

reads as follows:-

"In cases of death of the sole proprietor/all partners, reconstitution may be made in favor of the legal heir(s)/family members(s) with the consent of legal heir(s). In such case, induction of outside partner(s) will also be permitted. However, the maximum share of outside Incoming partners(s) will be restricted up to 49% till a period of 3 years from the date of commissioning. In cases of death of the sole proprietor/all partners, if there is no eligible legal heirs(s)/family members(s)/nominee(s) of the sole proprietor/Partners(s) or legal heir(s)/family member(s)/nominee(s) of the Sole proprietor/Partner(s) express unwillingness, the dealership shall be terminated."

14. Therefore, it is clear that reconstitution of sole

proprietorship on the death of the sole proprietor can be

permitted to be made in favour of the legal heirs/family

members only with the consent of all legal heirs. In the case

of the petitioner and respondents 3 and 4, the petitioner does

not desire to join in partnership with respondents 3 and 4 and

also not willing to give NOC to the BPCL for reconstitution with

respondents 3 and 4 as partners. Though in the writ petition WP(C) No.15053&18546/2014

respondents 3 and 4 claimed that they alone should be

permitted to form into a partnership to the exclusion of the

petitioner, at the time of hearing, respondents 3 and 4

expressed their willingness to take the petitioner also as a

partner. However, the petitioner is not ready to join in such a

partnership.

15. Clause 9 the Policy Guidelines reads as follows:-

"In case where there is no NOCs from Nominee(s)/Legal Heir(s) who are not eligible to become Dealer. In case of death, where one or more Nominee(s)/Legal Heir(s) are not willing to give relinquishment or NOC in favour of incoming/surviving Proprietor/Partner(s) despite the fact that these Nominee(s)/Legal heir(s) may not be eligible to become dealer as per Disqualification norm of Dealer Selection guidelines, in such cases obtaining NOC/Relinquishment from such Nominee(s)/Legal heir(s) will not be mandatory.

However, the onus would be on the surviving/incoming Proprietor/Partner(s) of the dealership to provide conclusive documentary evidence with regard to disqualification of such Nominee(s)/Legal heirs(s) and OMC would also independently verity the authenticity of the same. In such cases, OMCs may issue a communication to the concerned Nominee(s)/Legal heir(s) to submit documentary proof with regard to their eligibility within 30 days from the date of the letter. In case no response is received, the OMC can approve reconstitution of the dealership excluding such Nominee(s)/Legal heir(s). However the surviving/incoming Proprietor/Partner(s) of the dealership will have to indemnify the OMC against (Annexure-J2) any claims or demands which may be WP(C) No.15053&18546/2014

made in future.

For cases where letters written to such nominee(s)/Legal heir(s) gets returned undelivered. Such cases to be treated as "Nominees(s)/Legal Heir(s)/Partner(s) is/are not traceable" and further action is to be taken in accordance with the same."

16. In view of the above, where a legal heir is not willing

to give NOC in favour of incoming partners despite the fact

that where such nominee/legal heir is not eligible to become

Distributor as per disqualification norms of Distributorship

Selection Guidelines, in such cases obtaining

NOC/relinquishment from such nominee/legal heir will not be

mandatory. However, the onus would be on the incoming

partners to provide conclusive documentary evidence with

regard to disqualification of such legal heir and OMC would

independently verify the authenticity of the same. The counsel

for respondents 3 and 4 would contend that the petitioner has

acquired disqualification and therefore respondents 1 and 2

are bound to allow the request of respondents 3 and 4 to

constitute a partnership and run the Distributorship. WP(C) No.15053&18546/2014

17. From the Policy Guidelines, it is evident that it is a

matter to be decided by respondents 1 and 2 after

independent verification of the authenticity of such claims.

This Court cannot issue a Mandamus in that regard.

18. For all the above reasons, this Court is of the firm

opinion that neither the petitioner nor respondents 3 and 4, in

the facts and circumstances of the case, can stake a claim

that the petitioner or respondents 3 and 4 are entitled as of

right, to assignment of LPG Distributorship on the demise of

their mother.

Both the writ petitions are therefore without any

legal force and they are accordingly dismissed.

Sd/-

N. NAGARESH, JUDGE

aks/18.01.2021 WP(C) No.15053&18546/2014

APPENDIX OF WP(C) 15053/2014

PETITIONERS' EXHIBITS:

EXHIBIT P1 A TRUE COPY OF CERTIFICATE OF DEATH OF LEKSHMI

EXHIBIT P2 A TRUE COPYOF GUIDELINES FOR RECONSTITION OF DISTRIBUTORSHIPS OF THE 1ST RESPONDENT

EXHIBIT P3 A TRUE COPY OF PLAINT IN OS NO.143/2014 BEFORE THE COURT OF MUNSIFF, HARIPAD

EXHIBIT P4 A TRUE COPY OF NOTICE DATED 16.04.2014 ADDRESSED TO THE 2ND RESPONDENT

EXHIBIT P5 A TRUE COPY OF THE MINUTES OF THE MEETING ON RECONSTITUTION HELD ON 25.04.2014

EXHIBIT P6 A TRUE COPY OF REPRESENTATION DATED 10.05.2014 MADE BY THE PETITIONERS TO THE 2ND RESPONDENT

EXHIBIT P7 A TRUE COPY OF THE MINUTES OF THE MEETING ON RECONSTITUTION HELD ON 13.05.2014

EXHIBIT P8 A TRUE COPY OF NOTICE DATED 07.06.2014 SEND BY THE 3RD RESPONDENT

EXHIBIT P9 A TRUE COPY OF PARTNERSHIP DEED DATED 24.01.2015.

EXHIBIT P10 A TRUE COPY OF REPRESENTATION DATED 24.01.2015 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

EXHIBIT P11 A TRUE COPY OF COVERING LETTER DATED 28.01.2015.

WP(C) No.15053&18546/2014

RESPONDENTS' EXHIBITS

EXHIBIT R3(a) TRUE COPY OF SALE DEED NO.39/2000 OF KEERIKKAD SUB REGISTRY OFFICE IN FAVOUR OF THE 2ND PETITIONER

EXHIBIT R3(b) TRUE COPY OF SALE DEED NO.2283/1999 OF KEERIKKAD SUB REGISTRY OFFICE IN FAVOUR OF SMT.LAKSHMI WP(C) No.15053&18546/2014

APPENDIX OF WP(C) 18546/2014 PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE LETTER OF INDENT DT.17-

3-2000 ISSUED BY R1.

EXHIBIT P2 TRUE COPY OF THE WILL NO.4/III/2014 OF KEERIKKAD SUB REGISTRY EXECUTED BY SMT.LAKSHMI.

EXHIBIT P3 TRUE COPY OF THE SETTLEMENT DEED NO.52/2014 OF KEERIKKAD SUB REGISTRY.

EXHIBIT P4 TRUE COPY OF THE LETTER DT.22-2-2014 ISSUED BY THE R1.

EXHIBIT P5 TRUE COPY OF THE LETTER DT.20-5-2014 ISSUED BY R1 TO THE PETITIONER.

EXHIBIT P6 TRUE COPY OF THE LETTER DT.19-6-2014 SUBMITTED BY THE PETITIONER.

EXHIBIT P7 TRUE COPY OF THE MINUTES OF THE MEETING OF RECONSTITUTION OF DISTRIBUTORSHIP HELD ON 17-6-14.

EXHIBIT P8 TRUE COPY OF THE LETTER DT.12-4-2014 ISSUED BY R1.

EXHIBIT P9 TRUE COPY OF THE MINUTES OF THE MEETING OF RECONSTITUTION OF DISTRIBUTORSHIP HELD ON 13-5-14.

EXHIBIT P10 TRUE COPY OF THE LETTER DT.26-6-2014 SUBMITTED BY THE PETITIONER BEFORE R2.

EXHIBIT P11 TRUE COPY OF THE PLAINT IN OS 143/2014 OF THE MUNSIFFS COURT, HARIPPAD.

EXHIBIT P12 TRUE COPY OF THE IA 735/2014 IN OS 143/2014 OF THE MUNSIFF COURT, HARIPPAD.

EXHIBIT P13 TRUE COPY OF THE GUIDELINES ISSUED BY R1.

WP(C) No.15053&18546/2014

RESPONDENTS' EXHIBITS:

EXHIBIT R3(a) TRUE COPY OF DEATH CERTIFICATE OF LEKSHMI.

EXHIBIT R3(b) TRUE COPY OF GUIDELINES FOR RECONSTITUTION OF DISTRIBUTORSHIP OF THE IST RESPONDENT.

EXHIBIT R3(c) TRUE COPY OF PLAINT IN O.S.NO.143/2014 BEFORE THE COURT OF MUNSIFF, HARIPAD.

EXHIBIT R3(d) TRUE COPY OF NOTICE DATED 16.4.2014 ADDRESSED TO THE 2ND RESPONDENT.

EXHIBIT R3(e) TRUE COPY OF THE MINUTES OF THE MEETING ON RECONSTITUTION HELD ON 25.4.2014.

EXHIBIT R3(f) TRUE COPY OF REPRESENTATION DATED 10.5.2014 MADE BY THE RESPONDENTS TO THE 2ND RESPONDENT.

EXHIBIT R3(g) TRUE COPY OF MINUTES OF THE MEETING ON RECONSTITUTION HELD ON 13.5.2014.

EXHIBIT R3(h) TRUE COPY OF NOTICE DATED 7.6.2014 SEND BY THE 3RD RESPONDENT.

EXHIBIT R3(i) TRUE COPY OF PARTNERSHIP DEED DATED 24.1.2015.

EXHIBIT R3(j) TRUE COPY OF REPRESENTATION DATED 24.1.2015 SUBMITTED BY THE RESPONDENTS BEFORE THE 2ND RESPONDENT.

EXHIBIT R3(k) TRUE COPY OF COVERING LETTER DATED 28.1.2015.

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