Madhya Pradesh High Court
M/S Kanhaiyalal And Co. Through ... vs Indian Oil Corporation Limited on 11 January, 2023
Author: Sushrut Arvind Dharmadhikari
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SHRI JUSTICE PRAKASH CHANDRA GUPTA
ON THE 11 th OF JANUARY, 2023
WRIT APPEAL No. 1326 of 2022
BETWEEN:-
M/S KANHAIYALAL AND CO. ( A PROPRIETORSHIP
FIRM)
ADDRESS - AKODIA ROAD, SHUJALPUR MANDI,
DISTRICT SHAJAPUR,(M.P.)
THROUGH ITS PROPRIETOR SMT. KIRAN MUNDRA
W/O SHRI ANAND SWAROOP MUNDRA, AGED ABOUT 59
YE A R S , OCCUPATION: BUSINESS, R/O 153 SAKET
NAGAR INDORE (MADHYA PRADESH)
.....APPELLANT
(SHRI PIYUSH MATHUR, LEARNED SENIOR ADVOCATE WITH SHRI
MADHUSUDAN DWIVEDI- ADVOCATE)
AND
1. INDIAN OIL CORPORATION LIMITED THROUGH
ITS MANAGING DIRECTOR INDIAN OIL BHAWAN
G-9, ALI YAVAR JUNG MARG BANDRA EAST
MUMBAI (MAHARASHTRA)
2. DIVISIONAL RETAIL HEAD, INDORE DIVISIONAL
OFFICE (INDORE DO) INDIAN OIL CORPORATION
LIMITED, INDIAN OIL BHAWAN, PLOT NO. 8,
SCHEME NO. 159, MR-10 ROAD, INDORE
(MADHYA PRADESH)
.....RESPONDENTS
( SHRI YOGESH KUMAR MITTAL- ADVOCATE)
Th is appeal coming on for orders this day, JUSTICE SUSHRUT
ARVIND DHARMADHIKARI passed the following:
ORDER
Heard finally with the consent of both the parties.
Signature Not Verified
Signed by: VARSHA DUBEY
Signing time: 1/18/2023
10:24:37 AM
This writ appeal under Section 2(1) of the Madhya Pradesh Uccha
Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 has been filed being
aggrieved by the order dated 13.10.2022 passed in Writ Petition No.22645 of
2022.
The appellant is a proprietorship firm engaged in the business of retail,
sales and supply of petroleum products i.e. Motor Spirit (Petrol) and HSD
(Diesel) through its filling and service station situated at Akodia Road,
Shujalpur Mandi, Shujalpur, District Shajapur (M.P.).
The appellant had filed a writ petition under Article 226 of the
Constitution of India praying for following reliefs:-
"(A) The impugned order of termination of the dealership dated
20.09.2022(Annexure P=19) may kindly be quashed.
(B) That consequently the respondent Indian Oil Corporation Limited
may kindly be directed to permit the petitioner firm to operate the retail outlet
situated at Akodia Road, Shujalpur Mandi, Shujalpur, District Shajapur.
(C) That the respondent Indian Oil Corporation Limited may kindly be
directed to resume the sales and supply of the petroleum products to the retail
outlet of the petitioner firm.
(D) That Hon'ble High Court may kindly be pleased to issue any other
writ order or direction looking to the facts and circumstances of the case may
also be kindly given to the petitioner."
The writ petition came up for hearing before the learned Single Judge on
13.10.2022 and the following operative portion of the order came to be passed.
Paragraphs Nos. 19 and 20 are reproduced below for the purpose of
convenience:-
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"(19) Thus, while it can be said that this Court has recognized some
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exceptions to the rule of alternative remedy, i.e. where the statutory authority
has not acted in accordance with the provisions of the enactment in question,
or in defiance of the fundamental principles of judicial procedure, or has
resorted to invoke the provisions which are repealed, or when an order has
been passed in total violation of the principles of natural justice, the
proposition laid down in Thansingh Nathmal case, Titagarh Paper Mills
case and other similar judgments that the High Court will not entertain a
petition under Article 226 of the Constitution of India if an effective
alternative remedy is available to the aggrieved person or the statute under
which the action complained of has been taken itself contains a mechanism
for redressal of grievance still holds the field. Therefore, when a statutory
forum is created by law for redressal of grievances, a writ petition should not
be entertained ignoring the statutory dispensation.
(2 0 ) Thus analysed, on the bedrock of the aforesaid enunciation of
law, in view of the availability of efficacious alternative remedy, I decline to
entertain the present writ petition, however, the petitioner is granted 15 days
time to file appeal as per Clause 8.9 of MDG 2012 in accordance with the
law and if such appeal is filed within the aforesaid period, the same shall be
decided within a period of 90 days from the date of filing of the appeal. It is
needless to state that the Appellate Authority shall advert to all the questions
raised by the petitioner in the appeal in accordance with law and shall pass
a reasoned and speaking order."
Learned Senior Advocate Shri Piyush Mathur appearing for the appellant
contended that an inspection was carried out by the authorities of the
respondent Indian Oil Corporation on 11.04.2022 wherein the delivery from
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dispenser units were found to be incorrect and no critical or major irregularities
were found, but to the surprise of the appellant and without following the
mandatory provisions of the Market Discipline Guidelines (for short MDG), a
fact finding/show cause letter dated 18.05.2022 was issued alleging tampering
of two dispenser units of Gilbarco Make by "soldering rework" and some other
irregularities have been alleged and explanation was sought from the appellant.
The appellant duly replied by filing an exhaustive reply on 21.06.2022
wherein it was specifically stated that old and used dispensing units were
installed by the respondent-Indian Oil Company in which the repair works had
been done by technical Engineer of M/s. Gilbarco Veeder Root (for short
GVR) and no tampering or irregularities have been committed by the appellant.
It is further submitted by the learned Senior Advocate that learned Single Judge
erred in coming to the conclusion that the appellant has an alternative
efficacious remedy, therefore, the writ petition cannot be entertained. The
impugned order of termination was issued by an incompetent authority having
no jurisdiction to decide. The Executive Director in the Regional Office had
recommended termination of dealership of the appellant as per clause 8.9 of the
MDG, 2012. Appeal is provided before the Executive Director (Retail) stationed
at the headquarters at Mumbai who is the Officer of the equal rank i.e.
Executive Director who had recommended for termination of the dealership,
therefore, the alternative remedy cannot be said to be efficacious since the
Officer of the same rank has taken a decision to terminate the dealership.
On the other hand, Shri Y.K. Mittal, learned counsel appearing for the
respondent, opposed the prayer and submitted that the learned single judge has
rightly concluded that an efficacious alternative remedy of appeal is available to
the appellant before the Executive Director (Retail Sales), Mumbai which the
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appellant has not availed and approached this Court straight away, therefore, no
interference is called for in the writ appeal and the same deserves to be
dismissed on this ground alone. The appellant would be at liberty to raise all the
grounds raised before this Court. He further contended that even though the
Executive Director and the Regional level had granted personal hearing and
recommended termination of dealership, the appellate authority i.e. Executive
Director (Retail sales), Mumbai is on the higher pedestal since he is in-charge of
more number of States whereas the Executive Director at the Regional level is
in-charge of the particular State i.e. State of Madhya Pradesh only.
In reply, learned counsel for the appellant submitted that it is a settled
legal position that the alternative remedy is not a bar to entertain the writ
petition. In support of his contention, he relied on the judgment of Division
Bench of this Court in the case of Alok Kumar Choubey Vs. State of MP and
others 2021 (1) MPLJ 348. The Division Bench in paragraph Nos. 16 and 17
has set out seven well recognized exceptions to the rule of alternative remedy
for entertaining a writ petition under Article 226/227 of the Constitution of India
and has summarized thus:-
" 16. (i) where the writ petition has been filed for
enforcement of fundamental rights; (ii) where there has been
violation of principle of natural justice; (iii) where the order of
proceedings is wholly without jurisdiction; (iv) where the vires of
any Act is under challenge; (v) where availing of alternative
remedy subjects a person to very lengthy proceedings and
unnecessary harassment; (vi) where the writ petition can be
entertained despite alternative remedy if the question raised is
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purely legal one, there being no dispute on facts; and (vii) where
State or its intermediary in a contractual matter acts against public
good/interest unjustly, unfairly, unreasonably and arbitrarily.
Despite afore-noted exceptions, especially fifth and seventh of the
above, whether or not in a particular case the writ court should
entertain a petition under Article 226/227 of the Constitution of
India rather than requiring the petitioner to avail alternative
remedy, would always depend on the facts situation of a given
case, upon the petitioner making out a strong case. If it is shown
that the facts of the case are not disputed and the Government or
its instrumentality has been found acting unjustly, unfairly and
unreasonably even in regard to its contractual obligations, the
High Court would be justified in entertaining the writ petition
despite availability of alternative remedy.
17. In view of what has been discussed above, the question is no
longer res integra that if instrumentality of the State acts contrary
to the public good, public interest unfairly, unjustly, unreasonably,
discriminatory and violative of Article 14 of the Constitution of
India in its contractual or statutory obligation, the writ petition
would be maintainable. "
Moreover, it is further argued that there is no specific finding that
interpolation or manipulation has been done by the appellant. Had it been the
position, the respondent would have recommended for taking action against the
concerned Engineer who had prepared the dispensing unit. In view of the
aforesaid, the case of the appellant falls within the seven exceptions as laid
down in the case of Alok Kumar Choubey (Supra). Admittedly, the Executive
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Director has not granted approval but had granted personal hearing to the
appellant and had recommended termination of dealership. The order has been
passed without following principles of natural justice. The Engineer himself has
carried out the repair works. It is evident from the affidavit filed by the Engineer
which is at page No. 167 (Annexure P-16) of the writ petition, the inspection
was carried out in the presence of IOCL Officials. Similar issue came up before
the learned Single Bench of this Court at Jabalpur, in WP No. 12977/2022,
wherein the writ petition has been entertained in spite of availability of
alternative remedy as pointed out by the learned counsel for the respondent.
In view of the fact that the Officer recommending termination of
dealership as well as the appellate authority are being of the same rank, the
alternative remedy of filing an appeal cannot be said to be efficacious.
In view of the aforesaid as well as in the light of Alok Kumar Choubey
(supra), the order impugned cannot be allowed to stand. Accordingly, the same
is hereby quashed. Since the writ petition was dismissed at the initial stage itself,
on the ground of alternative remedy only, the matter is remanded back to the
learned Single Judge to decide the same on merits after granting opportunity to
the respondents to file their reply as expeditiously as possible. The interim
order granted on 18.10.2022 shall continue till the appellant approaches the writ
Court seeking continuation of interim relief granted by it in the writ petition.
(S. A. DHARMADHIKARI) (PRAKASH CHANDRA GUPTA)
JUDGE JUDGE
VD
Signature Not Verified
Signed by: VARSHA DUBEY
Signing time: 1/18/2023
10:24:37 AM
