Madhya Pradesh High Court
M/S Kanhaiyalal And Company Through Its ... vs Indian Oil Corporation Limited on 13 October, 2022
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
ON THE 13th OF OCTOBER, 2022
WRIT PETITION No. 22645 of 2022
BETWEEN:-
M/S KANHAIYALAL AND COMPANY
(A PROPRIETORSHIP FIRM)
ADDRESS AKODIA ROAD SHUJALPUR MANDI
SHUJALPUR DIST. SHAJAPUR (MP) THROUGH
ITS PROPRIETOR SMT. KIRAN MUNDRA W/O
SHRI ANAND SWAROOP MUNDRA, AGED
ABOUT 59 YEARS, OCCUPATION: BUSINESS AND
R/O 153, SAKET NAGAR DIST INDORE (MADHYA
PRADESH)
.....PETITIONER
(SHRI PIYUSH MATHUR, LEARNED SENIOR COUNSEL WITH SHRI
MADHUSUDAN DWIVEDI, LEARNED COUNSEL FOR THE
PETITIONER)
AND
1. INDIAN OIL CORPORATION LIMITED
THROUGH ITS MANAGING DIRECTOR INDIAN
OIL BHAWAN, G-9 ALI YAVAR JUNG MARG
BANDRA (EAST) MUMBAI (MAHARASHTRA)
400051
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, LEARNED COUNSEL FOR THE
RESPONDENTS [CAVEAT])
T h is petition coming on for orders this day, t h e cou rt passed the
following:
Signature Not VerifiedDigitally signed by
ORDER
SAN SOUMYA RANJAN
DALAI
Date: 2022.10.14
17:37:57 IST
The petitioner is a proprietorship firm who is engaged in the business of 2 Retail Sales and Supply of Petroleum Products that is Motor Spirit (Petrol) and HSD through its filling and service Station situated at Akodia Road, Shujalpur Mandi, Shujalpur, District-Shajapur (M.P).
2) In the instant petition filed under Article 226 of the Constitution of India, the petitioner has sought quashment of the order of termination of dealership dated 28/9/2022 and also prayed for a direction to permit the petitioner firm to operate the retail outlets situated at Akodia Road, Shujalpur Mandi, Shujalpur District- Shajapur. A direction has also been sought to resume the sales and supply of the petroleum products to the retail outlets of the petitioner firm.
3) The respondents on Caveat appeared and raised preliminary objections regarding maintainability of the present petition on the ground of availability of alternative and efficacious remedy of appeal under Clause 8.9 of Marketing Discipline Guidelines, 2012 (in short referred to as 'MDG'). It is submitted that as per Clause 8.9 of MDG, the petitioner can file an appeal within 30 days from the date of receipt of the order before the Appellate Authority (Executive Director)(Retail Sales)(South West) Head Office, Mumbai or any Executive Director, level Officer at the Head Office so nominated by the company) through Divisional Retail Head, Indore. Thus the petitioner has an efficacious, alternative remedy of appeal available to the petitioner before the Executive Director, Retail Sales (South West Mumbai) and, therefore, petition is liable to be dismissed on the ground of availability of alternative and efficacious remedy.
4) Counsel for the petitioner submitted that the remedy provided under Signature Not VerifiedDigitally signed by SAN SOUMYA RANJAN DALAI Date: 2022.10.14 17:37:57 IST Clause 8.9 is not efficacious remedy because the appeal is provided before the Executive Director whereas the order of termination of dealership has been 3 approved by the Executive Director/State Head who is holding the equivalent post of the Appellate Authority, therefore, the said remedy is not efficacious and the petitioner has no other option, but to approach this Court for redressal of grievances. The impugned order of termination of dealership has been passed by Divisional Retail Head, Indore. In the impugned order, it is mentioned that the petitioner will have right under Claue 8.9 of MDG, 2012 to appeal within 30 days from the date of receipt of the order before the Appellate Authority (Executive Director)(Retail Sales)(South West) Head Office or any Executive Director level officer at the head office so nominated by the company through Divisional Retail Head, Indore DO.
5) It is submitted that before passing the order of termination, a personal hearing was afforded by MP State Office in which ED State Head MPSO was also one of the member and, therefore, the remedy of appeal before an officer of equivalent rank would not be efficacious and fruitless.
6) To appreciate the rival contentions of counsel for the parties, it is apposite to refer the relevant appeal provisions of MDG, 2012 Clause 8.9 which reads as under :
Appellate Proceedings
1. In case of termination arising out of invocation of MDG, the dealer will have the right to appeal within a period of 30 days from the date of receipt of order, before the Appellate Authority, through the concerned Divisional/Territory/Regional Office of the Oil Marketing Company (OMC). The Appellat Authority is empowered to decide the matter and the appeal shall be disposed off preferably within 90 days from the date of filing the Signature Not VerifiedDigitally signed by appeal in the Divisional/Territory /Regional office of the concerned OMC.
SAN SOUMYA RANJAN
DALAI
Date: 2022.10.14
17:37:57 IST
2. For all appeals filed by the Dealer(s) on termination of their RO dealerships due to invocation of MDG, except 4 termination in case of SC/ST dealerships, the Appellate Authority will be the ED (Retail) in the Head Office or any other ED level officer at the Head Office, so nominated by the Company. For all cases of termination of SC/ST dealerships, the appellate authority will be a Director other than Director (Mktg.) of the OMC.
7) Upon perusal of the aforesaid provisions, it is manifest that the remedy of appeal has been prescribed within a period of 30 days from the date of receipt of the order to the ED (Retail) in the Head Office or any other ED level officer at the Head Office so nominated by the Company.
8) Counsel for the respondents submits that the order is passed by the Competent Authority as per the provisions of MDG, 2012. It would be open to the petitioner to raise all the issues including question of competence and jurisdiction of the issuing authority of the impugned order before the Appellate Authority. The respondents have clarified in the reply that the appellate jurisdiction is conferred to the functional Head at the Head Office, who is head of the functional Department of the complete region that is Western Region and Southern Region or any other Executive Director Level Officer at the Head Office. The State head is the head of one State Office only and have lower/different power as per the delegation of authority to function at only State level framed for working system of the respondent corporation. The Appellate Authority Executive Director (Retail Sales) (South West) Head Office, Mumbai is the Heading the complete Western and Southern Regions that comprises of the State/Union Territories of Gujarat, Karnataka, Kerala, Madhya Pradesh, Chattishgarh, Mumbai, Goa, Orissa, Tamil Nadu, Andhra Pradesh and Telengana etc. The Appellate Authority is heading the functional of retail sales Signature Not VerifiedDigitally signed by SAN SOUMYA RANJAN DALAI Date: 2022.10.14 17:37:57 IST department in the complete western and southern region of India. The Retail outlets comes under this function. He is an absolute expert of the functioning 5 related to the retail outlets. Relevant cases of appeals related to retail outlets from dealers are referred to him. As per the respondents, the remedy of appeal in the present case is an efficacious remedy as the Appellate Authority in the Head Office is an independent higher authority than the ED State Head.
9) Counsel for the petitioner also submitted that the order of termination of dealership is passed by incompetent authority. According to him, as per the Clause-45 of the Agreement between the petitioner and the respondent, the General Manager is the Competent Authority and the remedy of arbitration would not be efficacious because the Arbitrator cannot pass an order of restoration of dealership. In support of his submissions, he has placed reliance on the judgment passed by the Apex Court in the case of Harbanslal Sahnia & Anr. vs. Indian Oil Corpn. Ltd. & Ors. (2003) 2 SCC 107, Hindustan Petroleum Corporation Limited & Ors. vs. Super Highway Services & Anr. (2010) 3 SCC 321, and also on order dated 05.11.2014 passed by the Division Bench in the case of M/s. Thapak Petrol Pump vs. Hindustan Petroleum Corporation & Anr. (WA No. 819 of 2014).
10) In the case of Harbanslal Sahnia (supra), the Apex Court held that the Rule of exclusion of writ jurisdiction by availability of an alternative remedy is of discretion and not one of compulsion where the petitioner's dealership is terminated for an irrelevant and non-existent cause, the petitioner should have been allowed relief by the High Court itself instead of driving them to the need of initiating arbitration proceedings. In the said case and also in the cases of Hindustan Petroleum Corporation Limited and M/s. Thapak Petrol Pump Signature Not VerifiedDigitally signed by SAN SOUMYA RANJAN (supra), the availability of alternative remedy of arbitration was held to be not DALAI Date: 2022.10.14 efficacious because the Arbitrator cannot pass an order of restoration of 17:37:57 IST 6 dealership, but the provision of appeal under MDG, 2012 was not considered in the aforesaid judgments. The remedy of appeal is an efficacious remedy. Further the agreement between the parties cannot be read in isolation because as per the condition of the agreement, the instructions issued by the company time to time by way of MDG are binding on the petitioner.
11) In the present case, the respondents have come out with the plea of availability of alternative and efficacious remedy of appeal against the impugned order of termination of dealership before an independent and higher authority. It is not in dispute between the parties that the Marketing Discipline Guidelines (MDG - 2012) are applicable in the present case and remedy of appeal under Clause 8.9 has been provided under the Guidelines whereby the dealer has been provided remedy of filing an appeal against the order of termination of dealership within a period of 30 days from the date of receipt of the order and the Appellate Authority is under an obligation to dispose off the appeal preferable within 90 days from the date of filing of the appeal.
12) In view of the aforesaid, I find that alternative and efficacious remedy of appeal before an independent higher authority is available to the petitioner against the impugned order. The petitioner may raise all the issues before the Appellate Authority.
13) It is settled law that non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Indubitably, it is within the discretion of the High Court to grant relief under Article 226 of the Constitution Signature Not VerifiedDigitally signed by SAN SOUMYA RANJAN DALAI Date: 2022.10.14 17:37:57 IST of India despite the existence of an alternative remedy. However, the High Court must not interfere if there is an adequate efficacious alternative remedy available 7 to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226 of the Constitution. [See : State of U.P. vs. Mohammad Nooh, AIR 1958 SC 86; Titaghur Paper Mills Co. Ltd. vs. State of Orissa, (1983) 2 SCC 433; Harbanslal Sahnia vs. Indian Oil Corporation Ltd., (2003) 2 SCC 107; State of H.P. vs. Gujarat Ambuja Cement Ltd. (2005) 6 SCC 499.
14) The Constitution Bench of the Apex Court in K.S. Rashid and Sons vs. Income Tax Investigation Commission, AIR 1954 SC 207; Sangram Singh vs. Election Tribunal, Kotah, AIR 1955 SC 425; Union of India vs. T.R. Varma, AIR 1957 SC 882; State of U.P. vs. Mohd. Nooh (supra) and K.S. Venkatraman and Co. (P) Ltd. vs. State of Madras, AIR 1966 SC 1089 have held that though Article 226 confers a very wide powers in the matter of issuing writs on the High Court, the remedy of writ absolutely discretionary in character. If the High Court is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere, it can refuse to exercise its jurisdiction. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of principles of natural justice or procedure required for decision has not been adopted. [See : N.T. Veluswami Thevar vs. G. Raja Nainar, AIR 1959 SC 422; Municipal Council, Khurai vs. Kamal Kumar, (1965) 2 SCR 6 653; Siliguri Municipality vs. Amalendu Das, (1984) 2 SCC 436; S.T. Muthusami vs. Signature Not VerifiedDigitally signed by SAN SOUMYA RANJAN K. Natarajan, (1988) 1 SCC 572; Rajasthan STRC vs. Krishna Kant, DALAI Date: 2022.10.14 17:37:57 IST (1995) 5 SCC 75; Kerala SEB vs. Kurien E. Kalathil, (2000) 6 SCC 293;
8A. Venkatasubbiah Naidu vs. S. Chellappan, (2000) 7 SCC 695; L.L. Sudhakar Reddy vs. State of A.P., (2001) 6 SCC 634; Shri Sant Sadguru Janardan Swami (Moingiri Hamaraj) Sahakari Dugdha Utpadak Sanstha vs. State of Maharashtra, (2001) 8 SCC 509; Pratap Singh vs. State of Haryana, (2002) 7 SCC 484 and GKN Driveshafts (India) Ltd. vs. ITO, (2003) 1 SCC 72.
15) At this juncture it is apt to refer to the decision of the Apex Court rendered in the case of Nivedita Sharma vs. Cellular Operators Assn. of India, (2011) 14 SCC 337, wherein it is ruled that where hierarchy of appeals is provided by the Statute, party must exhaust the statutory remedies before resorting to writ jurisdiction for relief and observed as follows :
''12. In Thansingh Nathmal vs. Suptd. of Taxes, AIR 1964 SC 1419 this Court adverted to the rule of self-imposed restraint that the writ petition will not be entertained if an effective remedy is available to the aggrieved person and observed :
''7.... The High Court does not therefore, act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another Tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up.''
16) In another decision reported in (1983) 2 SCC 433 [Titaghur Paper Mills Co. Ltd. vs. State of Orissa] the Supreme Court observed :Signature Not VerifiedDigitally signed by
SAN SOUMYA RANJAN ''11...... It is now well recognized that where a right or liability is created by a statute which gives a special DALAI Date: 2022.10.14 17:37:57 IST remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with 9 great clarity by Wiles, J. in Wolverhampton New Waterworks Co. vs. Hawkesford, 141 ER 486 in the following passage : (ER p.495)..........There are three classes of cases in which a liability may be established founded upon a statute...... But there is a third class viz.
where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it.......The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhere to. The rule laid down in this passage was approved by the House of Lords in Neville vs. London Express Newspapers Ltd., 1919 AC 368 and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tabago vs. Gordon Grant and Co. Ltd.,1935 AC 532 (PC) and Secy. Of State v. Mask and Co., AIR 1940 PC 105. It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore, justified in dismissing the writ petitions in limine.''
17) It is also useful to refer to another decision of the Apex Court rendered in the case of Mafatlal Industries Ltd. vs. Union of India, (1997) 5 SCC 536, wherein B.P. Jeevan Reddy, J. (as His Lordship then was) speaking for the majority of the larger Bench, observed :
''77. So far as the jurisdiction of the High Court under Article 226 or for that matter, the jurisdiction of this Court under Article 32 is concerned, it is obvious that the provisions of the Act cannot bar and curtain these remedies. It is, however, equally obvious that while exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would Signature Not VerifiedDigitally signed by exercise their jurisdiction consistent with the provisions SAN of the enactment. (See: G. Veerappa Pillai vs. Raman & SOUMYA RANJAN DALAI Date: 2022.10.14 17:37:57 IST Raman Ltd., AIR 1952 SC 192; CCE vs. Dunlop India Ltd., (1985) 1 SCC 260; Ramendra Kishore Biswas vs. 10 State of Tripura, (1999) 1 SCC 472; Shivgonda Anna Patil vs. State of Maharashtra, (1999) 3 SCC 5; C.A. Abraham vs. ITO, (1961) 2 SCR 765; Titaghur Paper Mills Co. Ltd. vs. State of Orissa, (1983) 2 SCC 433; H.B. Gandhi vs. Gopi Nath and Sons, 1992 Supp (2) SCC 312; Whirlpool Corpn. v. Registrar of Trade Marks, (1998) 8 SCC 272; Sheela Devi vs. Jaspal Singh, (1999) 1 SCC 209 and Punjab National Bank vs. O.C. Krishnan, (2001) 6 SCC 569.''
18) In the case of Union of India vs. Guwahati Carbon Ltd. (2912) 11 SCC 651, the Apex Court reiterated the aforesaid principle and observed :
''8. Before we discuss the correctness of the impugned order, we intend to remind ourselves the observations made by this Court in Munshi Ram vs. Municipal Committee, Chheharta, (1979) 3 SCC. In the said decision, this Court was pleased to observe that : (SCC p.88, para 23) :
..... When a revenue statute provides for a person aggrieved by an assessment thereunder, a particular remedy to be sought in a particular forum, in a particular way, it must be sought in that forum and in that manner, and all the other forums and modes of seeking (remedy) are excluded,''
19) Thus, while it can be said that this Court has recognized some 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 din total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titagarh Paper Mills case and other similar Signature Not VerifiedDigitally signed by SAN judgments that the High Court will not entertain a petition under Article 226 of SOUMYA RANJAN DALAI Date: 2022.10.14 17:37:57 IST 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 11 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.
20) 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.
With the aforesaid liberty, the writ petition is dismissed.
(VIJAY KUMAR SHUKLA)
JUDGE
soumya
Signature Not Verified
VerifiedDigitally
Digitally signed by
SAN SOUMYA RANJAN
DALAI
Date: 2022.10.14
17:37:57 IST