Gupteshwar Mishra vs The Indian Oil Corporation ...
2022 Latest Caselaw 4356 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.15415 of 2021
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1. Gupteshwar Mishra Son of Shivdip Mishra @ Shiwdeep Mishra Resident of Village- Durga Dih, Police Station- Bikramganj, District- Rohtas

2. Raj Enterprises, duly represented by its partner Gupteshwar Mishra, Aged about 58 years, Gender- Male, Son of Shivdip Mishra @ Shiwdeep Mishra, Resident of Village- Durga Dih, Police Station- Bikramganj, District- Rohtas

... ... Petitioners Versus

1. The Indian Oil Corporation Limited through its General Manager, Jay Prakash Bhavan Dak Bungalow, Patna, Bihar

2. The General Manager, Indian Oil Corporation Limited, Jay Prakash Bhavan Dak Bungalow, Patna, Bihar Principal Secretary, Department of Health, Government of Bihar

3. The Chief Area Manager, Indian Oil Corporation Limited, Jay Prakash Bhavan Dak Bungalow, Patna, Bihar Principal Secretary, Department of Health, Government of Bihar

4. Sheo Kumar Mochi Son of Moti Mochi Resident of Village and Post-

Bhadsara, P.S. Kako, District- Jehanabad

... ... Respondents ====================================================== Appearance :

For the Petitioner/s : Mr. Kamal Nayan Chaubey, Sr. Adv.

Mr. Prashant Kumar, Adv.

For the Respondent-IOCL : Mr. K.D. Chatterjee, Sr. Adv.

Mr. Ankit Katriar, Adv.

====================================================== CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH and HONOURABLE MR. JUSTICE SHAILENDRA SINGH ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH)

Date : 08-08-2022

In the present application the petitioners have

sought for the following reliefs:-

"(i) For issuance of appropriate writ, order or direction in the nature of certiiorari for quashing and setting aside the letter having Reference No. PAO/Raj Enterprises dated 4.3.2016 (Annexure-6) Patna High Court CWJC No.15415 of 2021 dt.08-08-2022

issued by the Chief Area Manager, Indian Oil Corporation Limited whereby the customers of the petitioners have been attached with another distributorship on account of locking up of its premises by the district administration.

(ii) For issuance of appropriate writ, order or direction in the nature of Mandamus consequently directing the Respondents to reactivate the distributorship of the petitioners by restoring its customers and supply of LPG cylinders to the distributorship.

(iii) For issuance of an appropriate order or direction interdicting the Respondents from interfering into the business operations being carried out by the petitioner no. 1 in the name of the petitioner no. 2.

(iv) For grant of such other order or direction for which the petitioners are found entitled to in the facts and circumstances of the case."

2. The admitted facts pertaining to the Indiane LPG

distributorship in question are that in the year 1992-1993 an

advertisement for appointment of an Indiane LPG distributor for

the location Bikramganj in Rohtas district was published by the

respondent-Indian Oil Corporation Limited (for short "IOCL").

As per the advertisement, the same was limited to candidates

belonging to the Scheduled Caste category only. The private

respondent no. 4 Sheo Kumar Mochi applied for the said Patna High Court CWJC No.15415 of 2021 dt.08-08-2022

distributorship under the Scheduled Caste category vide his

application dated 03.01.1993. Subsequently, upon completion of

the selection formalities, he was issued a letter of intent dated

18.09.1995. Thereafter, vide order dated 26.3.1997, he was

appointed as the LPG distributor for Bikramganj location. The

said distributorship was commissioned on 31.03.1997 in the

name and style of "M/s Raj Enterprises" for which an agreement

as proprietor firm under the Scheduled Caste category was

executed between him and the IOCL on 22.8.2002.

3. The contentions advanced by Mr. K.N. Chaubey,

learned Senior Counsel for the petitioners are that since

inception, the respondent no. 4 was unable to run the said

business. He had incurred liability of Rs. 10,40,850/- for which

IOCL had issued notice to him and threatened to cancel the

distributorship in case the dues would not be cleared. On the

request of respondent no. 4, the petitioner no.1 agreed to form a

partnership agreement dated 23.8.2004 for which the petitioner

no. 1 had met the IOCL officials and, in pursuance thereof,

deposited bank drafts dated 28.2.2002 for Rs. 2,50,000/- and Rs.

38,950/-. Subsequently, he deposited Rs. 45,000/-, Rs. 26,747/-,

Rs.15,700/-, Rs. 72,000/- Rs. 45,000/- and Rs. 20,000/- to the

respondent-IOCL on different dates through bank drafts. Upon Patna High Court CWJC No.15415 of 2021 dt.08-08-2022

express acceptance and acquiescence of respondent-IOCL about

partnership of the petitioner, the petitioner no. 1 had cleared

dues of more than Rs.10 lacs. He had also invested several lacs

rupees including purchase of hundred of cylinders in order to

smoothly run the said business. Besides, the other liabilities of

M/s Raj Enterprises were also cleared by the petitioner no. 1.

All the investment business including its infrastructure of the

office and the godown etc. were being maintained by the

petitioner no. 1 and the respondent no. 4 had no stake in running

the distributorship as he was not capable of making any

investment.

4. It has further been contended that vide memo no.

312 dated 31.3.2009 as well as memo no. 315 dated 01.04.2009,

the Sub Divisional Officer, Bikramganj directed the Officer-in-

Charge Bikramganj police station to make an inventory of the

godown and for handing over the same to the respondent no. 4.

The Sub Divisional Officer, Bikramganj and the Officer-in-

Charge had also locked the premises in question on 21.3.2009.

Since the aforesaid actions of the Sub Divisional Officer,

Bikramganj and the SHO of Bikramganj police station caused

immense loss to the petitioner no. 1, he approached this Court

by filing a writ application vide CWJC No. 4791 of 2009 Patna High Court CWJC No.15415 of 2021 dt.08-08-2022

seeking quashing of the aforesaid Memo Nos. 312 dated

31.3.2009 as well as 315 dated 01.04.2009 respectively passed

by Sub Divisional Officer, Bikramganj and for commanding the

respondents to restore back the status quo ante prevailing before

21.03.2009 and for further holding that respondent-Sub

Divisional Officer, Bikramganj and the SHO, Bikramganj had

no authority to lock the premises in question. He contended that

the learned single Judge after hearing the parties did not allow

the reliefs prayed for in the writ petition and disposed of the

same by issuing certain observations and directions for enquiry.

Being aggrieved by the order of the learned single Judge, the

petitioner no. 1 preferred intracourt appeal before this Court

vide LPA No. 24 of 2010. The Division Bench disposed of the

aforesaid LPA vide order dated 24.02.2011 notwithstanding the

disputed question of facts as discussed by the learned single

Judge in the order passed in the writ application and directed the

respondent authorities to remove the locks immediately from the

premises in question and ordered for restoration of status quo

ante. He contended that respondent-IOCL being a party to all

such proceedings and orders having been passed by this Court

chose to remain oblivious. However, in order to defeat the order

of this court, the customers of the said distributorship were Patna High Court CWJC No.15415 of 2021 dt.08-08-2022

arbitrarily attached with another distributorship on 04.03.2016

without issuing any show cause notice on a non est ground of it

having been sealed by the district administration while the

administration had de-sealed the premises in favour of the

petitioner no. 1 vide order dated 28.2.2016.

5. The respondent IOCL has filed its counter affidavit

wherein it has been pleaded that after commissioning, the

respondent no. 4 was successfully running the distributorship to

the satisfaction of all concerned. The IOCL recognizes him and

none else as its distributor, as the contractual agreement for the

distributorship was entered between them only. The petitioner

no. 1 is a third party and does not have any semblance of a

relationship, jural or contractual with IOCL. As such, he is

precluded from asserting any rights against the respondent-

IOCL. Bereft of any locus having accrued to the petitioner no. 1,

he is wrongly masquerading as a partner of Raj Enterprises and

the name of petitioner no. 2 needs to be struck off from the array

of parties.

6. It is further contended in the counter affidavit that

respondent no. 4 had appointed one Anil Kumar Mishra, the

younger brother of the petitioner no. 1 act as a Manager in the

LPG distributorship on 21.02.2022 and taking advantage of his Patna High Court CWJC No.15415 of 2021 dt.08-08-2022

brother's proximity to the sole proprietor, the petitioner no. 1

had started creating problems in the running of the

distributorship. He purportedly manufactured forged partnership

documents also which wrongly suggested that he and

respondent no. 4 were jointly running the said distributorship as

a partnership concern.

7. It has further been pleaded in the counter affidavit

that recently on 21.06.2021 an in-principle approval has been

accorded by the respondent-IOCL to the reconstitution proposal

of existing sole proprietor (Sheo Kumar Mochi) to reconstitute

the distributorship into a partnership firm by inducting a

minority partner, namely, Sumant Singh with 25 per cent

partnership stake in the distributorship as per the applicable

reconstitution norms.

8. Mr. K.D. Chatterjee, learned Senior Counsel

appearing for the respondent-IOCL submitted that by no stretch

of imagination, the petitioner no. 1 can be treated to be a

distributor in the present case as the distributorship belong to

Scheduled Caste category. He has referred to original

advertisement under which the distributorship was given in

favour of the respondent no. 4 which has been marked as

Annexure-R1/1 to the counter affidavit in order to show that the Patna High Court CWJC No.15415 of 2021 dt.08-08-2022

distributorship was advertised only for candidates belonging to

the Scheduled Caste category. Since the petitioner no. 1 does not

belong to Scheduled Caste category, he was not even eligible to

apply for the distributorship. He has also drawn our attention to

R1/2 to the counter affidavit in order to show the letter of

appointment in favour of respondent no. 4. He has referred to

the guidelines for reconstitution of distributorship which would

suggest that induction of a minority partner(s) from outside

category in SC/ST category distributorship, the holding of

persons belonging to the SC/ST category under which the

distributorship was allotted should be at least 75%. He

contended that at no point of time, the petitioner no. 1

approached the respondent-IOCL for reconstitution of the

distributorship. He contended that even if there was any

agreement between the petitioner no. 1 and respondent no. 4, the

IOCL has no concern with that.

9. Mr. Chatterjee, learned Senior Counsel further

contended that neither in the writ petition nor in the Letters

Patent Appeal earlier filed by the petitioners before this Court,

petitioner no. 1 was legally authorized to operate, manage and

run the distributorship rather the order of learned single Judge

and the Division Bench would make it clear that this Court Patna High Court CWJC No.15415 of 2021 dt.08-08-2022

observed that the respondent no. 4 was the only person

authorized by the IOCL to operate, manage and run the

distributorship. He contended that the writ petition was against

the action of the authorities of the State who had forcibly locked

the premises and that was held to be bad by the Division Bench.

By no stretch of imagination, the order passed in the LPA

would confer any right upon the petitioner no. 1 to claim the

proprietorship over the distributorship in question. The order

passed by the Court was for restoration of status quo ante and

not for status quo ante in the favour of petitioner no. 1.

10. Mr. Chatterjee, learned Senior Counsel further

contended that though the impugned Annexure-6 was issued by

the Chief Area Manager of the Indian Oil Corporation on

04.03.2016, the petitioner no. 1 did not challenge the same for

over five years and he filed the present writ application as late

as on 28.08.2021. He contended that no explanation has been

given by the petitioner for the undue delay in challenging the

order impugned. He submitted that since the distributorship had

been locked by the district administration and the keys were

never handed over to the actual proprietor, it was not possible to

make any supply to such a locked distributorship. Therefore, in

greater public interest vide impugned letter dated 04.03.2016, Patna High Court CWJC No.15415 of 2021 dt.08-08-2022

the IOCL was constrained to attach the non-operating

distributorship to a distributorship which was operational

nearby.

11. We have heard learned Senior Counsel for the

parties and carefully perused the records.

12. It is not in dispute that the advertisement for

appointment of the Indiane LPG distributorship for the location

Bikramganj was published by the respondent-Corporation,

which was limited to the candidates belonging to the Scheduled

Caste category only. The respondent no. 4 in his individual

capacity under the Scheduled Caste category was appointed as

the LPG distributor for the said location. The distributorship

was commissioned in the name and style of M/S Raj Enterprises

for which an agreement as proprietorship firm under the

Scheduled Caste category was executed between the private

respondent no. 4 and the IOCL on 28.02.2002. The petitioner

no. 1 never applied for reconstitution of the commissioned

distributorship in the prescribed format before the IOCL.

Moreover, in terms of the guidelines of the IOCL, in case of

reconstitution, from a sole proprietorship to partnership of any

distributorship operating under the Scheduled Caste category,

the share of an incoming non SC partner would be limited by Patna High Court CWJC No.15415 of 2021 dt.08-08-2022

the extent policy to 25 per cent only. In the present case, the

petitioner no. 1 is claiming his right over the distributorship as

his contention is that all the investments have been made by him

and thus he is legally authorized to operate, manage and run the

distributorship.

13. In our considered opinion, the prayer made by the

petitioner no. 1 cannot be allowed for the simple reason that he

has no locus in the present matter. He is an alien so far the

distributorship is concerned in the eyes of the IOCL. Whether

the partnership documents annexed by the petitioner no. 1 in the

present application are genuine or manufactured and forged are

disputed questions of fact, which can be determined by a civil

court of competent jurisdiction in a properly instituted suit, but

on the basis, he cannot claim his right to operate the

distributorship.

14. Till date, the petitioner no. 1 has not made any

application before the IOCL for reconstitution of the LPG

distributorship. The IOCL recognizes the distributorship to be a

sole proprietorship firm and recently an in-principle it has

approved the reconstitution proposal of the sole proprietor Sheo

Kumar Mochi (respondent no.4) to reconstitute a distributorship

into a partnership firm by inducting a minority partner, namely, Patna High Court CWJC No.15415 of 2021 dt.08-08-2022

Sumant Singh with 25 per cent partnership stake. Any purported

private agreement entered into in contravention of a

distributorship agreement, which has its genesis in the State's

Public Policy, would fall foul of the stipulations in Section 23 of

the Indian Contract Act, 1872.

15. Mr. Chatterjee, learned Senior Counsel rightly

contended that in the order of the learned single Judge passed in

CWJC No. 4791 of 2009 as well as in the order passed by the

Division Bench in the LPA No. 24 of 2010, it has been

specifically accepted the fact that private respondent no. 4 was

the only person authorized by the IOCL to operate, manage and

run distributorship. He has also rightly submitted that the relief

granted by the Division Bench in the Letters Patent Appeal by

ordering restoration of status quo ante cannot be treated to be a

right having been conferred upon the petitioner no. 1 to operate,

manage and run the distributorship. The said order was passed

by the Court because of the illegal and arbitrary exercise of

powers by the administrative authorities of the State

Government in locking the premises without initiating any

proceeding either under Section 144 or Section 145 of the Code

of Criminal Procedure.

16. We are also of the opinion that the writ application Patna High Court CWJC No.15415 of 2021 dt.08-08-2022

is also fit to be dismissed on the ground of an inordinate delay

of over five years in challenging the impugned Annexure-6 to

the writ application. The petitioner no. 1 has not offered any

explanation as to what preempted him from seeking judicial

review after the impugned letter dated 04.03.2016 (Annexure-6)

was issued by the IOCL for over five years.

17. For the reasons stated above, the writ application is

dismissed.

18. However, before parting with the order, we make it

clear that though in the cause title of the writ application 'Raj

Enterprises' duly represented by its partner Gupteshwar Mishra

has been made petitioner no.2, we have not adjudicated upon the

right of the respondent no. 4, who is the sole proprietor of the

'Raj Enterprises' to challenge the impugned Annexure-6 to the

present application.

(Ashwani Kumar Singh, J)

( Shailendra Singh, J) rohit/-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          12-08-2022
Transmission Date       NA