Madhya Pradesh High Court
Smt.Lata Agrawal vs The Indian Oil Corporation Bhopal ... on 7 August, 2014
Equivalent citations: AIR 2015 (NOC) 106 (M.P.) (GWALIOR BENCH)
1 WP. No.3199/2014
HIGH COURT OF MADHYA PRADESH,
BENCH AT GWALIOR
SB: Justice Sujoy Paul
Writ Petition No. 3199/2014
Smt. Lata Agrawal
Versus
The Indian Oil Corporation and Ors.
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Shri N.S. Kirar, Advocate for the petitioner.
Shri N.K. Jain, Sr. Advocate with Shri A.K. Jain, Advocate for the
respondents.
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ORDER
( 07 / 08 / 2014) This is second visit of the petitioner to this Court. By filing this petition under Article 226 of the Constitution, the petitioner has challenged the legality, validity and propriety of the order dated 21.05.2014, whereby petitioner's dealership is terminated by the respondents.
2. The facts necessary for adjudication of this matter are as under :-
The respondents issued an advertisement dated 22.04.2011 inviting application with documents for the purpose of allotment of LPG dealership. The petitioner submitted his candidature for said dealership. In the selection process, the petitioner was selected and after due selection, he invested in construction of godown, office building and furniture etc. Copy of letter dated 15.03.2012 (Annexure P/4) is filed to show that LPG distributorship was offered to the petitioner. Shri N.S. Kirar, learned counsel for the petitioner submits that the petitioner submitted application and relevant documents which were duly verified and after having satisfied with the eligibility and capacity of the petitioner, he was given letter of appointment dated 27.09.2012 2 WP. No.3199/2014 (Annexure P/5). It is pleaded that at the time of submitting the application / candidature, the petitioner was having enough amount in addition to Rs. 15 lacs ( Rs. Fifteen Lacs) as required by the respondents in the bank, post office and LIC etc. The description of the said amount is given in page 7-8 of the WP. The respondent by order dated 28.04.2013 suspended the dealership of the petitioner. This order was called in question before this court in WP No. 2729/2014. This Court by order dated 16.05.2014 directed the respondents to consider the reply of the petitioner. The petition was disposed of without expressing any opinion on the merits of the case. The petitioner, in obedience of order passed by this court in WP No. 2729/2014 submitted a detailed reply. The respondents considered the reply and passed the impugned order by invoking clause 27(1) of the distributorship agreement. This order dated 21.05.2014 is called in question in the present petition.
3. Shri N.S. Kirar, learned counsel for the petitioner, assailed this order on the ground that the petitioner did not suppress any fact nor there was any misrepresentation of fact. The respondents with open eyes examined, verified and after having satisfied, issued the appointment order. The petitioner's agency continued to work from 29.09.2012 to 29.04.2014. In the functioning of the petitioner, no fault could be found. Thus, respondents are bound by the principle of "estoppal" and cannot be permitted to terminate the agency. It is further argued that whole action is founded upon the allegation that requisite amount was not in the "scheduled" bank.
4. By drawing attention of this court on Clause (V) of "Guidelines on Selection of Regular LPG Distributorship" (Annexure R/2), It is contended that in the guidelines there is no mention as to what is the meaning of "Scheduled" bank. No schedule or annexure is appended to the guidelines. Thus, there was an ambiguity in regarding "Schedule" which mislead the petitioner. The requisite amount was already there in different banks on the date of submission of application and therefore, on this ground petitioner's agency could not have been 3 WP. No.3199/2014 terminated. He relied on Division Bench judgment of this Court passed in WP No. 3133/2012 ( Ms. Ashok Kumar Raghuvanshi Vs. State of M.P. & Ors.) decided on 16.07.2012. He also relied on (2011) 5 SCC 697 (Union of India and Ors. Vs. Tantia Construction Private Ltd.) to submit that alternative remedy of arbitration etc cannot be a bar for the petitioner. Reliance on (2014) 1 MPHT 318 (Vijay Bahadur Singh Vs. Rameshwar and Others) is made to support the contention regarding 'estoppal'. Lastly, it is submitted that the condition of depositing in "Scheduled" bank cannot be treated as essential condition when petitioner is able to satisfy that otherwise the amount was deposited in other banks.
5. Per Contra, Shri N.K. Jain, learned Sr. counsel for the respondents, submits that the various documents including Annexure P/3 and R/4 show that it was made clear to the candidates that if any information / statement is found to be incorrect / false, LOI liable is to be withdrawn without assigning any reason. By taking this court to application Annexure P/3, it is argued that petitioner has given the details of account and amount in clause 11 of the said application. Petitioner has projected as if the Bhind Nagrik Sahakari Bank Ltd. is a scheduled bank, whereas as per bank's own letter dated 12.02.2014 (Annexure R/6) it is clear that it is not a scheduled bank as per RBI guidelines. On more than one occasion, it is argued that if petitioner was not sure about the meaning of "scheduled", he should have visited the website of Reserve Bank of India (RBI). Burden was on the petitioner to verify the meaning of "scheduled" bank.
6. By relying on clause (v) of the agreement, it is urged by Shri Jain that the petitioner has not fulfilled the requirement of availability of amount in the "scheduled" bank. Shri Jain further stated that in the present case the whole question is related to the fixed deposit of the petitioner at the time of submission of application in the scheduled bank. Since aforesaid cooperative bank is not a scheduled bank, the petitioner's agency is rightly terminated. It is further submitted that petitioner has an alternative remedy of arbitration as per clause 37 (a) of agreement (Annexure P/8). Reliance is placed on certain unreported judgments of this court passed in WP No. 8604/2011 4 WP. No.3199/2014 (Ramkumar Gupta Vs. Indian Oil Corporation & Anr.), WA No. 117/2014 (Rakesh Dora Vs. Union of India & Ors.), WP No. 5708/2008 (M/s. Abhay Sales retail outlet Vs. Indian Oil Corporation & Ors.), WA No. 147/2009 ( M/s. Abhay Sales retail outlet Vs. Indian Oil Corporation & Ors.) & WA NO. 638/2010 (Mohan Kumar Gole Vs. Indian Oil Corporation and Ors.)
7. No other point is pressed by the learned counsel for the parties.
8. On the basis of aforesaid submissions, the following points need to be answered:-
(i) Whether the petitioner should be relegated to avail the alternative remedy of arbitration?
(ii) Whether the respondents are bound by the principle of 'estoppal' after issuance of letter of appointment?
(iii) Whether the action of respondents in terminating the agency on the ground that requisite amount was not deposited by the relevant time in "scheduled" bank is justified?
Point (I)
9. The stand of the respondents is that the petitioner must avail the remedy as per clause 67 of the agreement. Reliance is placed on the judgment of this Court in M/s. Abhay Sales retail outlet (supra) which is affirmed by Division Bench in WA No. 147/2009. If the said judgments are perused, it will be clear that in the said case the disputed questions of facts were involved. The writ Court opined as under:-
"Whether the sample was properly drawn or not drawn, whether the seal was tampered or not tampered can be looked into by adducing evidence and also by appreciating the evidence in the matter. This Court at this stage cannot look into all these minute details as there are seriously disputed facts in the present petition and the same can be certainly resolved by resorting to the arbitration proceedings."
10. The Division Bench opined that "Whether the appellant was selling substandard goods or his petroleum products were adulterated or not of prescribed standards are the disputed question of fact which can properly be decided only by arbitrator and not by the court ....".
5 WP. No.3199/2014Thus, in the peculiar factual backdrop of case of M/s Abhay Sales (Supra) this court opined that petitioner be relegated to avail the remedy. It is trite that despite availability of alternative remedy, the petition can be entertained if order suffers from violation of principle of natural justice, passed by incompetent authority, vires of enabling provision is under challenge etc. This is a matter of discretion and not of compulsion. Discretion needs to be exercised as per facts and circumstances of a particular case. No straight jacket formula can be framed in this regard. In the factual backdrop of this case, the basic legal issue which needs to be decided is regarding interpretation of clause (v) of the guidelines (Annexure R/2).
11. Thus, I deem it proper to deal with this aspect in this matter itself. The arbitrator is bound by the terms of the agreement and may not be able to deal with this aspect. Accordingly, I am not inclined to relegate the petitioner to avail the alternative remedy in the facts and circumstances of this case. Apart from this, in the present case, petitioner seeks enforcement of fundamental rights. His dealership which was his bread and butter came to be terminated. In such circumstances, the petition needs to be directly entertained by this Court. In the similar facts, Apex Court opined that writ petition should have been entertained [See: (2003) 2 SCC 107 (Harbanslal Sahnia and Anr. Vs. Indian Oil Corporation Ltd. And Ors.)] Points No. (ii) & (iii)
12. I deem it proper to deal with the third point first. This point is based on clause (v) of the guidelines which reads as under :-
"(v). Have minimum total amount of Rs.15 lakhs for Urban Markets and Rs.10 lakhs for Urban- Rural Markets respectively as on the date of application. This amount is to be arrived at by adding amount in Savings Bank accounts in Scheduled Bank / Post Office, free and un-encumbered Fixed Deposits in Scheduled Banks, Post Office, Listed Companies / Government Organization / Public Sector Undertaking of State and Central Government, Kisan Vikas Patra, NSC, Bonds, Shares of Listed Companies, Listed Mutual Funds, ULIP, PPL, Surrender Value of Life Insurance policies in the name of Applicant or family members of the 'Family Unit' of the Applicant as defined above. In case of locations reserved under 'SC/ST' category, minimum total amount as on the date of application should be Rs. 5 lakhs for Urban Markets and 6 WP. No.3199/2014 Rs.2.5 lakhs for Urban-Rural & Rural Markets respectively."
(Emphasis supplied)
13. The pivotal question is as to what is the meaning of "Scheduled" as per the guidelines. The respondents have not shown any Annexure or provision from the guidelines to show that any list of banks is appended to it which is called as "Scheduled Bank". As per the General Clauses Act, 1897 the word "Schedule" means Schedule to the Act or Regulation in which the word occurs. The different dictionaries have given different meaning of word "Schedule", the same are as under:-
As per the New Lexicon Webster"s Dictionary (Vol. 2) the word 'Schedule' means (1) a written or printed list, often appended to a document such as a will, a timed program of procedure, a timetable for trains etc., the list of occupations the Department of Labor considers to be in short supply throughout the U.S., and for which it grants certification for immigration (2)v.t. Pre. Part scheduling past and past part. Scheduled to make a list of , to work out a program or timetable for, to assign in advance a time or date for (an event).
As per Black's Law Dictionary, Ninth Edition, word 'Schedule' means a written list or inventory; esp., a statement that is attached to a document and that gives a detailed showing of the matters referred to in the document < Schedule B to the title policy lists the encumbrances on the property.
As per Warton's Law Lexicon, Fifteenth Edition, word 'Schedule' means Schedule, a list, catalogue , or inventory of details, often as an explanatory supplement to a Will, bill of sale, deed etc., Webster American Dictionary, P. 1303.
Schedule, is as much a part of the Statute and as much an enactment as any other part; it must be read together with the Act for all purposes of Construction, Practice and Procedure of Parliament.
As Per Chambers Dictionary word 'Schedule' means (formerly schedule) orig a slip or scroll with writing; a list, inventory, or table; a supplementary, explanatory, or appended document, an appendix to a bill or act of parliament; a form for filling in particulars, or such a form filled in; a timetable' plan, programme, or scheme.
14. In view of definition of "Schedule" given in General Clauses Act 7 WP. No.3199/2014 and as per dictionary meaning, if respondents intention was that requisite amount must be in specified banks which are called as "Scheduled bank", in all fairness, they should have either appended / enclosed such list as "Schedule" to their guidelines or in alternative should have disclosed in the guidelines that for the purpose of "Scheduled" bank the candidates may seek guidance from RBI website etc. Respondents have not chosen to adopt any of the said alternatives. I am not able to persuade myself with the argument of Shri Jain that it was the duty of the candidates to visit RBI website to enquire about "Scheduled" Bank. It was the duty of the respondents to mention it with accuracy and precision regarding the meaning and import of word "Scheduled" Bank. It cannot be expected from a common man to make research while submitting candidature as to what is the meaning of "Scheduled Bank". It is for the corporation to frame terms and conditions in clear terms so that nobody can be mislead.
15. In absence of showing any "Schedule" with the guidelines which contains the name of particular bank or the nature of banks, I am unable to agree with the contention of the respondents that the petitioner has either misrepresented or suppressed the material fact. In absence of defining "schedule" banks or annexing such schedule, the question of misrepresentation or furnishing incorrect incorrect information does not arise. Shri Jain has relied on judgment of this Court in Ram Kumar Gupta (Supra). In the said case the amount was deposited in the current account whereas, as per guidelines it should have been in the saving account. Thus, the said facts are totally different from the present case. Hence, the said judgment has no application in the present case. Similarly in Rakesh Dora (Supra) the requirement was to have minimum balance of Rs. 15 lakhs and the petitioner therein was having only Rs.11,25,987/-. Thus, this Court opined that on the date of filing of application the appellant therein did not have requisite balance. The said case is also distinguishable and has no application in the facts of the present case. The judgment of Mohan Kumar Gole (Supra) is based on certain irregularities which were committed during the selection process. Thus, said judgment cannot be pressed into service in the present case.
8 WP. No.3199/201416. Matter may be examined from yet another angle. It is contended by the petitioner that on the date of application he had sufficient amount in other banks and he could have mentioned the same if the impediment of "Scheduled" bank was made clear to him. English Decision (Vid Spargo's case (1873) L.R. 8 Ch. App407) was considered by the Supreme Court in AIR 1991 SC 1579 ( Poddar Steel Corporation Vs. M/s. Ganesh Engineering Works and Others) and held as under :-
"7. The nature of payment by a certified cheque was considered by this Court in Sita Ram Jhunjhunwala v. Bomay Bullion Association Ltd., ( 1965) 35 Com Cas 526:
(AIR 1965 SC 1628). Several objections were taken there in support of the plea that the necessary conditions in regard to payment was not satisfied and in that context this Court quoted the observations from the judgment in an English decision (Vid Spargo's case (1873) L.R. 8 Ch. App. 407) that it is a general rule of law that in every case where a transaction resolves itself into playing money by A to B and then handing it back again by B to A, if the parties meet together and agree to set one demand against the other, they need not to go through the form and ceremony of handing the money backwards and forwards. This court applied the observations to a transaction requiring payment by one to another. The High Court's decisions in B.D. Yadav's case ( AIR 1984 Bombay 351) and T.V. Subhadra Amma's case (AIR 1982 Ker 81) are also illustrations where literal compliance of every term of tender notice was not insisted upon.
8. In the present case the certified cheque of the Union Bank of India drawn on its own branch must be treated as sufficient for the purpose of achieving the object of the condition and the Tender Committee took the abundant caution by a further verification from the bank. In this situation it is not correct to hold that the Diesel Locomotive Works had no authority to waive the technical literal compliance of clause 6, specially when it was in its interest not to reject the said bid which was the highest.
We, therefore, set aside the impugned judgment and dismiss the writ petition of the respondent No.1 filed before the High Court. The appeal is accordingly allowed with costs throughout."
17. A Division Bench of this Court considered the question as to whether on account of breach of condition of submitting FDRs of nationalized / Scheduled bank, bid of petitioner can be rejected. In Ms. Ashok Kumar Raghuvanshi (Supra) this court opined that the 9 WP. No.3199/2014 petitioner has deposited the FDRs issued by District Central Cooperative Bank. This court opined that it would be just and proper if the petitioner is given time to deposit the FDR's of nationalized / scheduled Bank because it is the case where petitioner does not fulfill the requisite terms and conditions of tender. The only question is about the deposit in Scheduled Bank. Thus following Poddar Steel Corporation (Supra), this Court permitted the petitioner to fulfill the requisite terms and conditions by providing FDR of nationalized / Scheduled Bank. In the opinion of this Court, the stand of respondents is too technical. Interestingly, they themselves have not understood the meaning of "Schedule" for a considerable long time and permitted the petitioner to operate the agency from September, 2012 to April, 2014.
18. On the basis of aforesaid analysis, the termination of agency on the ground of non-availability of deposit in "Scheduled" Bank is impermissible. So far the question of estoppal is concern, I am not impressed with arguments of Mr. Kirar on this aspect because the respondents have made it clear in the guidelines and other documents that the information furnished by the petitioner shall be subject to verification. Thus, respondents have right to examine the same at a later point of time. Merely because they have taken action after considerable long time, it cannot be said that they were bound by principle of estoppal. Thus, this point is decided against the petitioner. In nutshell, this Court is of the view that termination of agency of the ground that petitioner did not have FD in Scheduled Bank is impermissible and illegal. It is open to the respondents to insist in further selections that the deposit must be in "Scheduled" Bank but while doing so they must specify the word Scheduled Bank with accuracy and precision.
19. For the reasons stated above, the impugned order is set aside to the extent it relates with the termination of agency on the ground of non-availability of fixed deposit in "Scheduled" bank. If petitioner is able to satisfy the respondents that he had requisite amount in other banks as on the date of application / candidature, his agency cannot be terminated. The impugned order dated 21.05.2014 is set aside.
10 WP. No.3199/2014The respondents are directed to examine whether applicant had sufficient fixed deposit in other banks as on the date of application. If he satisfies the said condition, the petitioner's agency be restored within 03 weeks.
20. Impugned order dated 21.05.2014, subject to aforesaid, is set aside. Petition is allowed. No costs.
(SUJOY PAUL)
Sarathe/- Judge