Vijayakumaran Nair vs The Chairman
2022 Latest Caselaw 1334 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
              THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
     TUESDAY, THE 1ST DAY OF FEBRUARY 2022 / 12TH MAGHA, 1943
                        WP(C) NO. 14312 OF 2021
PETITIONER:

          VIJAYAKUMARAN NAIR
          AGED 66 YEARS
          S/O. KRISHAPILLAI, SREESAILAM, MELAMKODE, VALIYARA,
          VELLANAD VILLAGE, NEDUMANGADU TALUK, THIRUVANANTHAPURAM
          DISTRICT - 695543.
          BY ADVS.
          C.P.PEETHAMBARAN
          MINI.V.A.


RESPONDENTS:

    1     THE CHAIRMAN
          BHARAT PETROLEUM CORPORATION LIMITED, 4 & 6 CUIRRIMBHOY
          ROAD, BALLARD ESTATE, MUMBAI - 400001.
    2     BHARAT PETROLEUM CORPORATION LIMITED
          ERNAKULAM TERRITORY (RETAIL) OFFICE, IRUMPANAM
          INSTALLATION, COCHIN - 682309, REPRESENTED BY ITS
          TERRITORY MANAGER.
    3     THE SALES OFFICER
          BHARAT PETROLEUM CORPORATION LIMITED, REGIONAL OFFICE,
          CHACKA, VELI, THIRUVANANTHAPURAM - 695001.
          BY ADVS.
          RAJA KANNAN
          M.GOPIKRISHNAN NAMBIAR,SC
          K.JOHN MATHAI
          JOSON MANAVALAN
          PAULOSE C. ABRAHAM
          M.GOPIKRISHNAN NAMBIAR
          KURYAN THOMAS



     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
01.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 14312 OF 2021

                                    2



                 P.V.KUNHIKRISHNAN, J
               -------------------------------
               W.P.(C)No. 14312 of 2021
              --------------------------------
     Dated this the 1st day of February, 2022


                        JUDGMENT

The above writ petition is filed with following

prayers:

"(i) Issue a Writ of Mandamus or any other appropriate writ, Order or Direction, directing the 2 nd respondent to grant permission to the petitioner to resume the operation of his dealership of Sree Badra Fuels, Vellanad, in the property leased out to him, comprised in Resurvey No.837/12-1-1, Block No.36 of Karippoor Village, Nedumangad Taluk, Thiruvananthapuram District, by extending the period of lease from 28.2.2021 to a further period of 15 years, within a time frame fixed by this Hon'ble Court;

(ii) grant such other reliefs as deem fit and proper by this Hon'ble Court in the facts and circumstances of the case.

2. The grievance of the petitioner is that his WP(C) NO. 14312 OF 2021

application to resume the operation of Retail Outlet

dealership at Vellanad, Thiruvananthapuram

District, after shifting the site, has not considered

by the respondents in spite of the directions from

this Court. The petitioner was granted with a

dealership of Petroleum Outlet with effect from

28.2.2006 for 15 years in the name and style of

'M/s.Shree Badra Fuels' as evident by Ext.P1. In

the year 2013, a dispute arose between one Anu

R.S. with the petitioner in respect of the right to

conduct the outlet and therefore the supply of fuel

was stopped by the 2nd respondent. According to

the petitioner, the dispute is settled long back and

the petitioner requested to supply the fuels and to

restart the outlet vide Ext.P3 representation. The

2nd respondent considered Ext.P3 in pursuance of

the directions of this Court in Ext.P4 and thereafter

Ext.P5 was issued. The petitioner could not comply WP(C) NO. 14312 OF 2021

with the requirements in Ext.P5 and sought

extension of time. It is stated that the petitioner

subsequently submitted Exts.P6, P8 and P9

documents, but no final decision has been

conveyed. Hence this writ petition is filed.

3. Heard the learned counsel for the

petitioner and the learned Standing counsel

appearing for the respondents.

4. The learned counsel for the petitioner

reiterated his contentions in the writ petition. The

counsel takes me through Ext.P10 judgment of this

Court and submitted that there is no proper

consideration of the grievance of the petitioner as

directed by this Court. The counsel submitted that

the petitioner is ready to furnish the necessary

documents and there may be a direction to resume

the dealership.

5. On the other hand, the learned Standing WP(C) NO. 14312 OF 2021

counsel for the respondents submitted that the

licence issued to the petitioner already expired on

28.2.2021. As on today, admittedly, there is no

licence. The counsel submitted that in 2013, the

dealership was transferred to a 3rd person by the

petitioner in total violation of the Clauses in

Ext.R1(a) agreement. The counsel takes me

through Clause 10(h) and 10(q) of Ext.R1(a). The

counsel submitted that, in the light of the facts

narrated in the counter affidavit, the prayers in this

writ petition may not be entertained by this Court.

6. I considered the contentions of the

petitioner and the respondents. I also perused the

documents produced along with the writ petition

and the averments in the counter affidavit along

with the documents produced by the respondents.

Admittedly, the licence issued to the petitioner is

expired on 28.2.2021 and there is no licence as on WP(C) NO. 14312 OF 2021

today. The prayer in this writ petition is to issue a

direction to the 2nd respondent to grant permission

to the petitioner to resume the operation of his

dealership in the property leased out to him,

comprised in Resurvey No.837/12-1-1, Block No.36

of Karippoor Village, Nedumangad Taluk,

Thiruvananthapuram district by extending the

period of lease from 28.2.2021 to a further period

of 15 years. Admittedly, the petitioner was not

conducting the dealership in the above property. I

perused the counter affidavit filed by the

respondents. It will be better to extract the

relevant portion of the counter affidavit:

"9. That the true and correct facts pertaining to the present matter has not been disclosed in the writ petition. The Petitioner was selected as a dealer of the 2nd Respondent for a retail outlet situated at 'New R.Sy.No.499/13/2/1, 499/13- 1&499/13-2-2 (Old R.S.No.726/3/2), Block No.38, Vellanad Village, Vellanad-10 Panchayat'.

10. While so, around 2013, the Petitioner WP(C) NO. 14312 OF 2021

illegally sold off the land in which the dealership was situated, along with the dealership, to Mr. Anu R.S. The Petitioner also gave Mr. Anu R.S the Power of Attorney to operate the retail outlet allotted to the Petitioner. The Petitioner had no right to do the same without the consent of the 2 nd respondent. The said actions of the Petitioner violated several clauses of the Dispensing Pump and Selling License signed between the 2nd Respondent and Petitioner dated 28.02.2006. True copy of the dispensing pump and Selling License signed between the 2nd Respondent and Petitioner dated 28.02.2006 is produced herewith and marked as Exhibit R1(a).

11. in view of the abovesaid illegal action of the Petitioner, the said Mr. Anu R.S approached this Hon'ble Court by filing W.P.(C) No.24882/2013, seeking that the retail outlet be allotted to him. By way of Exhibit P2 Order dated 20.11.2013, this Hon'ble Court directed the 2 nd Respondent to consider the representation of Mr. Anu R.S. and pass appropriate orders after hearing both sides.

12. accordingly, a hearing was given by the competent authority of the 2 nd respondent to the Petitioner and Mr. Anu R.S, and the representations of these parties were considered. The 2nd Respondent passed on Order dated 01.01.2014 stating that it is not possible to allot the retail outlet to MR.Anu R.S. WP(C) NO. 14312 OF 2021

True copy of the Order dated 01.01.2014 passed by the 2nd Respondent is produced herewith and marked as Exhibit R1(b). It was inter alia stated in the said Order dated 01.01.2014 that:

"6d. As per Clause 10(h) of the DPSL agreement, the licensee has agreed not to assign the licence or part with benefit thereof or grant any sub licence to any person, firm or company. As per Clause 10(q) of the DPSL agreement the licencee has agreed not to sell mortgage, let , hypothecate, charge or otherwise deal with or dispose of the outfit or any part thereof to any person. Firm or company nor to purport to sublet or grant license in respect thereto, not to allow anyone except the duly authorized employees of the license to use the same. Any attempt by the dealer to violate these clauses will be treated [sic] very seriously by BPCL. Such a clause is added in the agreement [sic] with an intention to prevent the dealers from alienating the license and its benefits to outsiders and thereby causing backdoor entry to the dealership by persons who are not otherwise eligible to be considered for dealership and also to prevent dealers from making undue enrichment at the cost of BPCL."

13. Pursuant to the above, after a period of more than 3 years, Exhibit P3 representation dated 17.10.2017 was submitted by the Petitioner and by way of Exhibit P4 Order dated 08.11.2019 in W.P.(C) No. 35661 of 2017, this Hon'ble Court directed the 2 nd WP(C) NO. 14312 OF 2021

Respondent to take a decision on the said Exhibit P3 representation. Accordingly, the 2 nd respondent considering the case of the petitioner, and by way of letter dated 05.12.2019, requested the Petitioner to submit the requisite KYC documents. The true copy the letter dated 05.12.2019 issued by the 2 nd Respondent is produced herewith and marked as Exhibit R1(C) . However, Bank Account statement of retail outlet before closure and proof of possession of land where retail outlet exists was not submitted by the Petitioner.

14. Thereafter, vide Exhibit P5 letter dated 06.01.2020, it was communicated to the Petitioner that the Petitioner shall be given an opportunity to rectify his past mistakes. It was stated that if the Petitioner is interested in reviving the operation of the retail outlet, he should submit within 15 days the (i) Undertaking as per Annexure-N2 of the reconstitution guidelines; and (ii) Proof of Possession of land where the retail outlet exits. The Petitioner admittedly did not comply with the directions given in Exhibit P5 letter, and thereby did not avail of his opportunity to rectify his past mistakes. Though the Petitioner belatedly, i.e. more than 10 months later, on 08.10.2020 submitted the Exhibit P6 Indemnify Bond, the Petitioner still did not provide the 'Proof of Possession of land where the retail outlet exists'. The Petitioner has not provided this document till date. In view thereof, the retail outlet could not be revived due WP(C) NO. 14312 OF 2021

to the deliberate inactions of the Petitioner himself.

15. That Exhibit P7 letter dated 08.10.2020 was submitted by the Petitioner wherein he admits in that he had executed a sale deed in favour of Mr.Anu R.S. to sell the land in which the dealership was located. He also admits that the documents as directed to be produced by the 2 nd Respondent had not been produced by him.

16. That things being so, the Petitioner did a volte-face and, as opposed to asking for the revival of existing retail outlet, started demanding a resitement, for which he had no legal or contractual right. This very fact goes to show that the Petitioner illegally sold of the land where the retail outlet existed, i.e. 'New R.Sy.No.499/13/2/1, 499/13-1& 499/13-2-2 (Old R.S.No.726/3/2),Block No.38, Vellanad Village, Vellanad-10 Panchayat'. The petitioner began stating that owners of the plot located at 'Resurvey No.837/12-1-1, Block No.36 of Karipoor Village, Nedumangad Taluk, Thiruvanathapuram District' are willing to lease the plot to him for 15 years, which is a wholly immaterial fact as he has no right for resitement and the Exhibit P5 letter dated 06.01.2020 specifically dealt with the conditions that had to be fulfilled by the Petitioner for revival of the outlet."

In the light of the above averments and WP(C) NO. 14312 OF 2021

the factual situation , I think the petitioner is not

entitled any relief from this Court and this Court is

not in a position to issue any direction to the 2 nd

respondent.

Accordingly, this writ petition fails and

dismissed.

Sd/-

P.V.KUNHIKRISHNAN JUDGE

DM WP(C) NO. 14312 OF 2021

APPENDIX OF WP(C) 14312/2021

PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE LETTER OF APPOINTMENT DATED 28.02.2006 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 20.11.2013 IN WP(C) NO.24885/2013 OF THIS HON'BLE COURT.

EXHIBIT P3       TRUE COPY OF THE REPRESENTATION
                 DATED   17.10.2017   SENT    BY   THE

PETITIONER TO THE 2ND RESPONDENT.

EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 08.11.2019 IN WP(C) NO.35661/2017 OF THIS HON'BLE COURT.

EXHIBIT P5       TRUE   COPY  OF   THE   LETTER  DATED
                 6.1.2020    ISSUED    BY    THE   2ND
                 RESPONDENT.
EXHIBIT P6       TRUE   COPY    OF  THE    AFFIDAVIT   /
                 INDEMNITY    BOND   DATED    08.10.2020

SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT THROUGH 3RD RESPONDENT.

EXHIBIT P7 TRUE COPY OF THE REPRESENTATION DATED 08.10.2020 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

EXHIBIT P8 TRUE COPY OF THE CONSENT LETTER DATED 05.11.2020 OF ABOOBACKER AND SOUMYA, THE LESSOR OF THE PROPERTY. EXHIBIT P9 TRUE COPY OF THE LATEST TAX RECEIPT DATED 11.06.2020 OF THE SAID PROPERTY ISSUED BY THE KARIPPOOR VILLAGE OFFICER.

WP(C) NO. 14312 OF 2021

EXHIBIT P10 TRUE COPY OF THE JUDGMENT DATED 06.01.2021 IN WP(C) NO.26399/2020 OF THIS HON'BLE COURT.

EXHIBIT P11 TRUE COPY OF THE REPRESENTATION DATED 25.06.2021 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.

RESPONDENTS EXHIBITS:

EXHIBIT R1(A) TRUE COPY OF THE DISPENSING PUMP AND SELLING LICENCE SIGNED BETWEEN THE 2ND RESPONDENT AND PETITIONER DATED 28.02.2006.

EXHIBIT R1(B)    TRUE   COPY      OF   THE   ORDER   DATED
                 01.01.2014       PASSED   BY    THE   2ND
                 RESPONDENT.
EXHIBIT R1(C)    TRUE   COPY      OF  THE    LETTER  DATED
                 05.12.2019       ISSUED    BY   THE   2ND
                 RESPONDENT.
EXHIBIT R1(D)    TRUE   COPY  OF   THE  LETTER   DATED

28.07.2012 ISSUED BY THE PETITIONER.

EXHIBIT R1(E)    TRUE   COPY      OF  THE    LETTER  DATED
                 25.01.2021       ISSUED    BY   THE   2ND
                 RESPONDENT.


                        //TRUE COPY//

                        PA TO JUDGE