Karnataka High Court
M S Venkatesh vs Union Of India on 28 May, 2018
Equivalent citations: AIRONLINE 2018 KAR 102
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF MAY, 2018
BEFORE
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
WRIT PETITION No.13072/2015 (GM-RES)
BETWEEN:
M.S. VENKATESH
AGED 54 YEARS,
S/O. LATE M.S. SRINIVASA MURTHY,
REPRESENTING M.S. SRINIVASA MURTHY & SONS,
NO. 1142 ASHOKNAGAR,
MANDYA - 1. ... PETITIONER
(BY SRI M.S. VENKATESH, PARTY-IN-PERSON)
AND:
1. UNION OF INDIA,
REP. BY ITS SPECIAL SECRETARY,
MINISTRY OF PETROLEUM & NG(MARKETING),
II FLOOR, SHASTRI BHAWAN,
NEW DELHI - 110 001.
2. BHARAT PETROLEUM CORPORATION LTD.,
WITH ITS REGISTERED OFFICE AT 4 & 6
CURRIMBHOY ROAD,
BALLARD ESTATE,
MUMBAI-1,
REP. BY ITS TERRITORY MANAGER,
17 DU-PARC TRINITY,
7TH FLOOR, M.G. ROAD,
BANGALORE - 01.
3. M.S. SATYANANDA
S/O. SHIVANANJAPPA,
SHIVALEELA ENTERPRISES,
TEMPORARY DEALER FOR BHARAT PETROLEUM,
M.C. ROAD,
MANDYA - 571 401. ... RESPONDENTS
(BY SRI VEERENDRA SHARMA, CGSC, FOR R-1;
SRI M.S. NARAYAN, ADVOCATE FOR R-2;
SRI P.B. AJIT & SRI THONTADHARYA, ADVOCATES FOR R-3)
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET
ASIDE THE ORDER PASSED BY RESPONDENT NO.1 AT
ANNEXURE-O DT.21.03.2013 PASSED BY MOP IN P-
21027/08/2008-DISTT.(VOL.II), AND FURTHER ISSUE
DIRECTIONS TO RP-1 TO INSTRUCT BPCL TO HAND OVER THE
DEALERSHIP TO PETITIONER.
THE JUDGMENT IN THIS PETITION HAVING BEEN
RESERVED ON 26/03/2018 AND IT BEING LISTED FOR
PRONOUNCEMENT TODAY, COURT PRONOUNCED THE
FOLLOWING:
ORDER
The petitioner herein, who has appeared as party-in- person, has sought for setting aside the order passed by respondent No.1 - Special Secretary, Ministry of Petroleum and Natural Gas, dated 21/03/2013 (Annexure-O), concerning termination of dealership agreement signed with the petitioner. Petitioner has also sought a direction to respondent No.1 to handover the dealership to him, in respect of M/s. Bharath Petroleum Corporation Limited retail outlet on the leasehold land situated at Mandya District.
2. This writ petition has a checkered history, having completed several rounds of litigation before this Court, the Hon'ble Supreme Court as well as the City Civil Court at Bengaluru. Nevertheless, this Court has given a -:3:- careful consideration to the contentions raised by both parties.
3. The genesis of the dispute between the parties started in the year 2001, when the dealership agreement with the petitioner was terminated by M/s. Bharath Petroleum Corporation Limited ('BPCL' for short). Petitioner herein was the license holder for running a retail outlet petrol bunk in Mandya District, on obtaining dealership agreement from the then Burmah Shell, now Bharath Petroleum Corporation Limited (BPCL). In fact, the dealership agreement was previously with father of the petitioner, M.S. Srinivasamurthy since 06/08/1945. After the demise of M.S. Srinivasamurthy, on 07/06/1984, petitioner continued the retail outlet and the retail outlet dealership was reconstituted and signed by the petitioner on 07/10/1993 for a period of fifteen years till 06/10/2008.
However, on 28/05/2001, the Territory Manager of BPCL terminated the license of the petitioner for alleged lapses and breach of covenants of the dealership agreement by the petitioner on 28/05/2001, after issuing show-cause notice to him on 09/05/2001.
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4. Petitioner approached this Court by filing W.P. No.21910/2001 and vide order dated 28/05/2004, this Court allowed the petition by setting aside the order passed by the Territory Manager, BPCL, and consequently, a direction was issued to the General Manager (South), Chennai, to examine the case independently and without being influenced by earlier order and to pass appropriate order in accordance with law. Pursuant to the said direction, Petitioner filed additional objections and the General Manager (South), Chennai reconsidered the matter and by Order dated 21/07/2004, the General Manager (South) confirmed the termination of the dealership agreement.
5. Aggrieved by the order of General Manager (South), Petitioner approached this Court in W.P.Nos.14109/2005, 21858/2005 and 23390/2005 seeking several reliefs, by challenging the order dated 21/07/2004 passed by the General Manager (South), Chennai, and sought for quashing of the said Order, and to issue a direction to Additional Secretary (Marketing), Ministry of Petroleum, to consider the case afresh. On -:5:- 11/03/2008, this Court refused to entertain the writ petitions as the matter related to a contractual dispute and hence dismissed them with liberty to the petitioner to approach the Additional Secretary (Marketing), Ministry of Petroleum, as this Court was of the view that the Additional Secretary (Marketing), Ministry of Petroleum had supervisory powers to examine the issue and to institute such enquiry on the basis of the representation by the petitioner, which shall be treated as an appeal. Liberty was also reserved to the petitioner to file a civil suit and seek appropriate reliefs, if so advised.
6. Subsequently, petitioner approached the Additional Secretary (Marketing), Ministry of Petroleum, wherein petitioner was given an opportunity of personal hearing on 08/08/2008 and 21/11/2008 to present his case. The Additional Secretary (Marketing), Ministry of Petroleum vide order dated 09/02/2009, dismissed the appeal/representation of the petitioner and stated that the dealership was terminated for violation of provisions of Dealership Agreement and refused to accede to re- establish the retail outlet and that Government could not interfere in such matters.
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7. Petitioner being aggrieved by order of Additional Secretary, approached this Court in W.P. No.4890/2009, by impleading Union of India, represented by Ministry of Petroleum and Natural Gas, represented by its Additional Secretary. This Court declined to interfere with the Order of the Respondent as the matter was already concluded in earlier proceedings. However, petitioner filed writ appeal and this Court in W.A. No. 3975/2009, dated 01/12/2011, set aside the order of the Additional Secretary (Marketing), Ministry of Petroleum, dated 09/02/2009, stating that the said order was not a speaking order and therefore, ordered for a fresh consideration within a period of three months. This Order was challenged by the Union of India, through Additional Secretary (Marketing), Ministry of Petroleum, before the Hon'ble Supreme Court, in S.L.P. (C) No.27685/2012 and the order of this Court passed in W.A. No.3975/2009, was upheld and the special leave petition was dismissed by order dated 07/12/2012
8. Pursuant to order of the Hon'ble Supreme Court in S.L.P.(C)No.27685/2012, dated 07/12/2012, the -:7:- Ministry of Petroleum and Natural Gas, considered the matter afresh and vide impugned order dated 21/03/2013, has declared that the BPCL has terminated the dealership agreement for violation of conditions contained in dealership agreement and also for various irregularities, and thereby, rejected the representation of the petitioner. Aggrieved by the said order, petitioner is before this Court assailing order dated 21/03/2013, passed by the Additional Secretary, Ministry of Petroleum and Natural Gas.
9. In the meanwhile, petitioner had also filed O.S. No.1223/2010, on the file of XXXVII Addl. City Civil Court, Bengaluru, seeking the relief of declaration with regard to termination order dated 28/05/2001 and subsequent termination order dated 21/07/2004 and restoration of the dealership to the plaintiff (petitioner herein) by declaring that the termination is null and void. The trial Court framed as many as five issues and answered Issue Nos.1 and 2 in the negative and Issue Nos.3 and 4 in the affirmative. Thereby, the City Civil Court held that plaintiff (petitioner herein) had failed to prove that the order of termination passed by the Territory Manager as well as the General Manager was null and void and that plaintiff was -:8:- not entitled for restoration of Dealership. Consequently, the said suit was dismissed by judgment and decree dated 20/06/2011. An appeal came to be filed in R.F.A. No.1210/2011 by the petitioner, before this Court. The appeal was initially disposed off by judgment and decree dated 24/08/2011, wherein this Court allowed the appeal by setting aside the judgment and decree passed by the trial Court and remanded the matter to the trial Court for fresh disposal in accordance with law. Against the judgment of this Court, the defendant - BPCL preferred Special Leave Petition, which was converted to civil appeal before the Hon'ble Supreme Court and in C.A.No. 8985/2012, the matter was remanded by the Hon'ble Supreme Court to this Court for fresh consideration on the ground that this Court had not examined the contentions raised by parties on merits by its judgment dated 12/12/2012. After considering the same, this Court affirmed the judgment of the trial Court and dismissed the said appeal by judgment and decree dated 17/06/2013. Against the dismissal of regular first appeal, petitioner filed S.L.P No.37900/2013 before the Hon'ble Supreme Court, wherein the Apex Court, by dismissing the same, reserved -:9:- liberty to file a review petition against the judgment in R.F.A No.1210/2011, by its judgment dated 28/02/2014. Subsequently, petitioner filed a review petition in R.P.No.250/2014 and the same was also dismissed on 07/07/2014. Thus, the judgment dated 17/06/2013 has attained finality as the order passed in R.P.No.250/2014 has not been assailed by the petitioner before the Hon'ble Supreme Court.
10. I have heard petitioner, who has appeared as party-in-person, learned Assistant Solicitor General, and learned counsel for respective respondents on different dates at length as well as perused the material on record.
11. It is submitted by the petitioner, who has appeared in-person that, petrol bunk dealership with his father was in existence since the year 1945 and the petitioner, as a partner along with his father, signed the dealership agreement on 06/08/1975. However, petitioner continued to run the said retail outlet even after his father died in the year 1984. The petrol station was situated on land belonging to Department of Hindu Religious and Charitable Endowments, Government of Karnataka. The
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said land was taken on lease by BPCL to set up the Petrol station. However, BPCL did not pursue with the Government for extending the lease after its expiry. The petrol station was in service till the middle of 1987 and on account of the irresponsible acts of BPCL, the petrol station was closed, due to which petitioner lost business for seven long years. After its re-commission in the year 1993, BPCL formulated another Dealership Agreement on 07/10/1993 against the policy guidelines as the Dealership was not selected under the new guidelines of the Oil Selection Board. That Dealership Agreement, which was entered into on 07/10/1993 was for a period of fifteen years till 06/10/2008, unlike the earlier agreement, wherein, there was no stipulated period for the dealership. It is further submitted that the petitioner was under duress and that he was forced to sign the agreement. Petitioner has further contended that there was no inspection conducted by officials of BPCL and a document was fabricated and show- cause notice dated 09/05/2001 was issued to the petitioner. That the termination of dealership on 28/05/2001 by BPCL was illegal as there were no serious allegation made in the show-cause notice dated
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09/05/2001. That there has been no violation of Dealership Agreement by the petitioner and solely on account of personal vengeance the termination of the agreement was made by BPCL, which is contrary to law and hence, illegal.
12. Petitioner has stated that he challenged the said order of termination issued by BPCL before this Court in W.P.No.21910/2001 and the same was quashed by order dated 28/05/2004. Consequently, this Court issued a direction to the General Manager to consider the matter afresh. Petitioner further contended that the General Manager (South), BPCL, upheld the order of termination against which another writ petition was filed in W.P.No.14109/2005. This Court vide order dated 11/03/2008 granted liberty to the petitioner to file an appeal before the Ministry. Subsequently, the appeal filed before the Ministry was dismissed on 09/02/2009.
13. Petitioner, as party-in-person, has further submitted that while the old dealership agreement was still in force the same could not have been withdrawn as there was no intimation given to him in writing. The order dated
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09/02/2009 declining to re-establish the dealership was set aside by this Court in Writ Appeal No.3975/2009 and the Division Bench directed the Ministry to pass a speaking order. That the Hon'ble Supreme Court of India has upheld the decision of this Court and dismissed the appeal filed by the Respondents. That petitioner filed a representation before the Ministry, but the Ministry has failed to rectify the order passed by the General Manager.
14. According to the petitioner, BPCL has erred in executing a fresh agreement, which was signed by the petitioner under protest. That he has not committed any serious violation of the covenants of the agreement and also policy guidelines and hence, seeks for the restoration of the terminated dealership.
15. On the other hand, learned Assistant Solicitor General appearing for respondent No.1 - Ministry, has filed his Statement of Objections by contending that Union of India has no role in the matter relating to the termination of the dealership for violation of terms and conditions of the dealership agreement. Pursuant to the directions of the Hon'ble Supreme Court to pass a speaking order, the
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Ministry provided an opportunity to the Petitioner on 22/01/2013 and 11/02/2013 to put forward all the issues, and thereafter, has passed an order on 21/03/2013 confirming the termination of the agreement by respondent No.2. It is further held that retail outlet cannot be re-established by the Ministry, as it is not a matter for intervention by the Union Government.
16. Learned counsel appearing for respondent No. 2 has filed his Statement of Objections and has contended that the land in which the retail outlet exists is land belonging to the Department of Hindu Endowments, Government of Karnataka, which granted lease to BPCL from 01/04/1969 to 31/03/1984 for a period of fifteen years. The subject land belongs to Sri Lakshmi Janardhana Swamy Temple under the control of the Government of Karnataka. Further, BPCL stepped into the shoes of erstwhile Burmah Shell and sought for renewal of lease of land. But the State Government got the site vacated, as the temple trustees had decided to construct a building on the said site. Learned counsel denied allegations of negligence on the part of respondent No.2 - Corporation.
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17. It is the further contention of the learned counsel that the Deputy Commissioner had refused to issue NOC for the issuance of the Explosive license, since the retail outlet was becoming a safety hazard. Learned counsel contended that on the expiry of the lease period, petitioner was not selected as a dealer by the Oil Selection Board and hence, the new norms did not apply to him. But on the other hand, a fresh dealership agreement was entered into between the petitioner and the respondent -
Corporation on 07/10/1993, upon the expiry of the old agreement and the Petitioner was bound by the terms contained in the new agreement. The dealership with the Petitioner was terminated on several grounds, which included selling spurious lubricants, keeping retail outlet dry, case of adulteration being registered by the IOC Mobile Lab, non-cooperation with members of oil industry, among other issues, which led to the respondent - Corporation to issue show-cause notice dated 09/05/2001 to the petitioner and subsequent termination of the agreement.
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18. Further, learned counsel vehemently contended that the Ministry cannot intervene in the dispute, as the relationship between the petitioner and the respondent - Corporation is governed by the terms of the dealership agreement and the provisions contained therein. The dealership was terminated for violation of terms and conditions mentioned in the agreement after giving sufficient opportunity to the petitioner by issuing show-cause notice. Pursuant to the directions of the Hon'ble Supreme Court and the High Court in writ appeal, to reconsider the representation filed by the petitioner and thereafter to pass a speaking order, the Ministry of Petroleum and Natural Gas has passed an order confirming termination of agreement by BPCL, which is just and proper.
19. Learned counsel for respondent No.2 further submitted that the petitioner had filed a civil suit before the City Civil Court at Bengaluru for the very same cause of action, which came to be dismissed. Subsequent to dismissal, Petitioner preferred R.F.A. No.1210/2011, which was remanded for fresh consideration. Being aggrieved by the order of remand, the respondent - Corporation
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preferred Civil Appeal before the Hon'ble Supreme Court in C.A. No.8985/2012, wherein it was directed that the High Court pass a fresh order after taking into consideration additional documents filed by both parties. This Court after hearing the matter on merits and upon consideration of additional documents filed by the parties, dismissed the appeal. Review filed against the judgment in the first appeal was also dismissed on the ground that the matter had attained finality as the petitioner had not relied upon the documents which were sought to be produced while hearing the appeal or before the trial Court. That the judgment in regular appeal has attained finality as the review petition was dismissed, is the submission of learned counsel for respondent No.2.
20. Learned counsel for respondent No.2 further contended that the dealership agreement, which was executed for a period of fifteen years came to an end on 06/10/2008 and therefore, the Ministry of Petroleum could not interfere in the matter of termination of dealership relating to a commercial agreement by directing that a fresh agreement be entered into by respondent No.2 with the petitioner. The allegations made by petitioner with
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regard to the failure to supply petrol and diesel by respondent - Corporation has been dealt with by the trial Court and the same cannot be entertained in the present writ petition and hence, he sought for its dismissal.
I have also heard learned counsel for respondent No.3.
21. Having heard learned counsel for respective parties, it is noted that the petitioner herein is aggrieved by the order of termination dated 28/05/2001 and the order impugned in this writ petition is a subsequent order, which has been passed by the Special Secretary, Ministry of Petroleum and Natural Gas, pursuant to the direction of the Hon'ble Supreme Court.
22. Though several contentions have been raised by the petitioner with regard to the impugned order, what is of significance to note is that the petitioner has been approaching various Courts by filing series of petitions and suits to espouse his cause. Further, petitioner had filed a writ petition way back in the year 2001, which was allowed by this Court on the ground that respondent No.2 -
BPCL had not followed the principles of natural justice and directed the higher authorities of BPCL to consider the case afresh. Based on the said directions, the General Manager
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(South), Chennai considered the matter afresh and confirmed the order of termination passed by the Territory Manager. It appears that the termination order has been passed on allegation of several lapses and breach of covenants of dealership agreement which included selling spurious lubricants, keeping retail outlet dry, case of adulteration being registered by the IOC Mobile Lab, Non-
Cooperation with oil industry members among other issues, which led to the Respondent-Corporation to issue Show cause notice to the Petitioner and subsequently, terminate the dealership agreement. However, petitioner has been alleging illegality in the order passed by the Territory Manager, which was considered by the General Manager (South), Chennai, who passed an order confirming the termination of the dealership agreement. The order of General Manager was again in challenge before this Court and this Court was of the view that the Additional Secretary (Marketing), Ministry of Petroleum had supervisory power to examine the issue. Thereafter, the Additional Secretary (Marketing), Ministry of Petroleum granted opportunity to the Petitioner to present his case and upon being unsuccessful, the petitioner again
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approached this Court seeking to set aside the Order of Additional Secretary (Marketing), Ministry of Petroleum. This Court observed that the matter cannot be considered as it was concluded in earlier proceedings. The said Order was again in challenge in Writ Appeal, wherein this Court set aside the Order and directed the Ministry to pass a speaking Order. The Hon'ble Supreme Court upheld the judgment of the Division Bench of this Court and the impugned order dated 21/03/2013 has been passed.
23. What is of significance is the fact that petitioner had filed a suit in O.S. No.1223/2010, on the file of XXXVII Addl. City Civil and Sessions Judge, Bengaluru City. The Trial Court held that plaintiff (petitioner herein) had failed to prove that the Order of termination passed by the Territory Manager and confirmed by the General Manager was null and void, and therefore plaintiff was not entitled to restoration of dealership. This court in first appeal was of the view that:
"16. ......... The plaint was presented before the court below on 24/02/2010. Thus, by the date of presentation of the plaint, the order dated 28/05/2001 passed by the Territory Manager had already been set aside by this Court.
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Therefore, there was no occasion for the plaintiff to seek setting aside the order passed by Territory Manager. Even as on that date, it was a non-existing order. Nevertheless, the plaintiff sought setting aside the said Order and this appears to have led the trial court to consider the case in that behalf. ....... In view of the fact that this court has set aside the order passed by the Territory Manager and directed the General Manager to consider the case afresh and in the light of the fact that the plaintiff sought setting aside the order passed by the General Manager and also restoration of dealership, the court below was required to consider the validity of the order passed by the General Manager only. In this view of the matter, I shall proceed to consider the question as to whether the trial court is justified in upholding the order passed by the General Manager at Chennai."
Further, the Court observed that the parties to a contract are bound by the terms and conditions set out in the agreement signed by the parties and parties reserve rights to terminate in case of breach of the contractual terms as under:
"20) It is necessary to note that the dispute relates to a non-statutory contract between the
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plaintiff and the Corporation. The terms and conditions agreed to between the parties have been set-out in the written agreement duly signed by the parties. Upon due compliance of the terms and conditions, the plaintiff was entitled to continue the business for the period mentioned in the agreement. The Corporation which is one of the parties to the agreement, reserved right to terminate the license in the event of violation of any of the terms and conditions of the agreement. In the case on, the dealership license granted to the Plaintiff has been terminated on the ground of the plaintiff has been terminated on the ground of the plaintiff having committed violations and breach of various terms and conditions of the agreement. It is in this background, the case of the plaintiff has been considered by the Court below. The role of the Court in a case of this nature is limited unless the Order passed by the non-statutory authority is shown to be highly biased. The order passed by the Territory Manager was questioned before this court in the writ petition mainly on the ground of bias. Having regard to the apprehension expressed by the plaintiff as to the conduct of Territory Manager, this court after setting aside the order passed by the Territory Manager directed the General Manager stationed at Chennai to consider the case. In the entire plaint filed by the plaintiff, there is no allegation of any personal
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bias on the part of the General Manager. The challenge to the order of the General Manager is that he has not considered the statement of objections filed in its proper perspective and that he has traversed beyond the imputations made in the show-cause notice. There is no serious dispute and it is also borne-out by records that for several days the retail out-let run by the plaintiff was kept dry. This is evident from the fact that the plaintiff has contended that he was not responsible for dry-out of the out-let. One of contentions raised in this regard is, there is no condition in the agreement that the plaintiff has to place indent for 'Full Lorry Load' and not 'Part Lorry Load'. It is his further contention that whenever he placed orders for 'Part Lorry Load' with necessary payments, supply was not made on the ground that the indent has not been placed for 'Full Lorry Load'. This according to the plaintiff led to non-supply of petroleum products and this has resulted in drying-out of the retail out-let. The General Manager in his order has considered this aspect of the matter with reference to Clauses-10(b) and 10(d) of the licence.
21) According to Clause 10(b) of the licence, the licence holder should promote the sales of the Company's products to the satisfaction of the Company and achieve sales target as may be set by the Company from time
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to time. According to Clause 10(d), the licence holder should place orders orally or in writing as the circumstances require, for the purchase of Motor Spirit or H.S.D. from the Company at the Company's nett price as applicable for the time being at the time and place of delivery and, if in bulk, in quantities at a time for each pump not being in excess of the licensed capacity of the underground storage tanks. The said clause further provides that the Company shall, having regard to the availability of the product and transport, accept in writing such order or part thereof or act upon the same as may be possible and the order will be made in a manner which will allow for economical deliveries being made.
22) Perusal of the dealership agreement marked as Ex.D.27 though indicates that there is no specific condition therein that the licencee should always place orders for 'Full Lorry Load', Clause-10(d) reserves a right in the Company to meet the request for supply of the products in the manner which will allow for economical deliveries being made. It is in the evidence on record that the plaintiff was repeatedly asked to place indent for 'Full Lorry Load' to make delivery more economical and in spite of such intimation, the plaintiff went on placing orders for 'Part Lorry Load' only. Certain discretion is vested in the Company in terms of Clause-10(d) , therefore, it is not open to the plaintiff to contend that he is
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not required to place indent for 'Full Lorry Load' though he was asked to do so, on the ground that the agreement does not place such restriction on his part. As per the evidence placed by the defendant/Corporation, there was a good demand for 'Full Lorry Load' and in spite of the same, indent was not placed for 'Full Lorry Load'.
23) The General Manager having regard to the language of the Clause-10(d) and the evidence available on record, came to the conclusion that the plaintiff by his repeated act of placing orders for 'Part Lorry Load' has allowed the retail out-let to remain dry and thereby the very purpose for which the licence was granted got frustrated and thereby the plaintiff had committed breach and violation of the conditions of the agreement. It is also noticed by the General Manager that on certain occasions, the indent placed by the plaintiff did not accompany the demand draft for the value of the products sought. There is no dispute that the cheque issued by the plaintiff was not honoured may be on account of 'stop payment instruction', nevertheless it had resulted in not honouring the cheque. Having regard to these factors, the General Manager was of the opinion that the plaintiff has committed violation of the terms and conditions of the agreement, therefore, licence granted to him is liable to be terminated.
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Therefore, he held that termination of the dealership licence is valid. The General Manager has also considered few other allegations made against the plaintiff in several correspondences which relate to the plaintiff stocking certain products supplied by other companies than the Corporation and also selling adulterated petroleum products in the retail out- let. Of course, as rightly contended by the plaintiff these imputations were not found in the show-cause notice dated 09.05.2001.
24) It is the further contention of the appellant that though in the show-cause notice dated 09.05.2001 it was alleged that the appellant has committed breach of the terms of the dealership agreement, in the corrigendum dated 22.05.2001 these aspects were not indicated. Therefore, it is deemed that the imputations made in the show-cause notice dated 09.05.2001 have been given a go-by and what the General Manager required to do was to consider the imputations in the corrigendum.
This argument was canvassed before this Court while arguing Writ Petition No.14109/2005 and connected matters and this court while rejecting the said argument has observed thus in Paragraph-12 of the order passed in the said writ petition, ".................. With regard to breaches committed by the petitioner in respect of
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the dealership agreement, even though the petitioner contends that in the corrigendum these aspects were not indicated, it is difficult to accept that the show-cause notice dated 09.05.2001 was given a go-by and only the corrigendum would arise for consideration since the penultimate paragraph of the order impugned would clearly indicate that both the show-cause notice dated 05.05.2001 and 22.05.2001 have been considered.
Further this court in the earlier writ petition has directed consideration of the show-cause notice dated 09.05.2001 and the additional objection to be filed to the same. Therefore, the corrigendum dated 22.05.2001 cannot be considered to be in supersession of the notice dated 09.05.2001, but is an additional opportunity granted."
25) In the light of the above, it is not open to the appellant to contend that the General Manager was required to consider only imputations made in the corrigendum dated 22.05.2001. Hence, the said contention is rejected.
26) Having regard to the facts and circumstances of the case and the undisputed facts, the order passed by General Manager as
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per Ex.D.39 cannot be termed as perverse warranting interference by the Court. Therefore, in my considered opinion, the court below is justified in holding that the order passed by the General Manager terminating the dealership licence granted to the plaintiff cannot be set aside. It is also necessary to note that as per the terms of the agreement-Ex.D.27, the period for which the licence was granted expired in the year 2008. The suit came to be filed in the year 2010. Thus, two years prior to the date of the suit, the period of licence had come to an end. Therefore, question of ordering restoration of the dealership of the plaintiff did not arise. Of course, as contended by the plaintiff, the licence was terminated in the year 2001 and for nearly seven years prior to the expiry of the period mentioned in the agreement, the plaintiff was out of business. However, the civil court cannot direct the authorities to continue the dealership for that period even if the order of the General Manager is held to be illegal or improper for any reasons. As rightly contended, remedy of the plaintiff in such circumstances is only to file suit for damages. Having regard to the fact that the period of licence had expired two years prior to the date of the suit, the plaintiff is not entitled for the relief of restoration. Of course, the plaintiff was agitating the matter before the authorities and that has helped the plaintiff in over-coming the period of limitation. However, that would not help
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the plaintiff in seeking restoration of the dealership.
27) Having regard to the facts and circumstances of the case and the evidence available on record, in my considered opinion, the court below has not committed any error in dismissing the suit of the plaintiff. The findings recorded by the court below are sound and reasonable regard being had to the evidence available on record. The judgment under appeal does not suffer from any perversity or illegality warranting interference by this Court. In this view of the matter, the appeal lacks merit and accordingly is dismissed."
It is noted that W.P.No.14109/2005 was dismissed by order dated 11/03/2008. In that writ petition liberty was reserved to the petitioner herein to approach the civil Court, if so advised. In terms of that order, the petitioner filed O.S.No.1223/2010 before the City Civil Court, Bengaluru. The said suit was dismissed, against which regular first appeal was filed and the same was disposed off by judgment and decree dated 24/08/2011 by this Court and the matter was remanded to the trial Court.
Against the judgment of this Court, BPCL filed special leave petition, which was converted to civil appeal and the
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Hon'ble Supreme Court, set aside the judgment of this Court and requested this Court to reconsider the matter.
On re-consideration, this Court dismissed the appeal. The relevant portions of the judgment passed in the regular first appeal have been extracted above.
Against the judgment passed by this Court in the regular first appeal, petitioner had preferred special leave petition before the Hon'ble Supreme Court, which was dismissed, reserving liberty to the petitioner to file a review petition before this Court. R.P.No.250/2014 filed by the petitioner herein has been dismissed. Therefore, this Court has already held against the petitioner herein in the matter of termination of the dealership agreement, which was by judgment passed in regular first appeal on 17/06/2013. However, the impugned order is dated 21/03/2013, which is pursuant to the direction of the Hon'ble Supreme Court. Since this Court has upheld the termination order dated 17/06/2013 in the regular first appeal, which has not been interfered with the Hon'ble Supreme Court and in the review petition filed against the said judgment, the same has also been confirmed, and the review petition has been dismissed, the petitioner once
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again cannot seek to re-agitate the issue of termination of the dealership before this Court by challenging order dated 21/03/2013 in this writ petition. When once this Court has upheld the termination of the dealership in the regular first appeal, which has attained finality, the same cannot be interfered with by this Court while considering the correctness of order dated 21/03/2013. Further, impugned order dated 21/03/2013 being in consonance with the judgment and decree passed in the regular first appeal dated 17/06/2013, the same cannot be interfered with in this writ petition. The doctrine of res judicata and finality of judgments/orders applies in the instant case.
The relevant decisions of the Apex Court in this context are as follows:-
(a) On the aspect of finality of litigation in the case of Special Land Acquisition Officer vs. Karigowda and Others [(2010) 5 SCC 708], at paragraph 105, the Apex Court held as follows;
"An established maxim "boni judicis est lites dirimere, ne lis ex lite onitur, et interest reipulicate ut sint fines litium" casts a duty upon the Court to bring litigation to an end or at least ensure that if possible, no further litigation arises
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from the cases pending before the Court in accordance with law. This doctrine would be applicable with greater emphasis where the judgment of the Court has attained finality before the highest Court. All other Courts should decide similar cases, particularly covered cases, expeditiously and in consonance with the law of precedents."
(b) In Krishna Swami vs. Union of India [(1992) 4 SCC 605], the Apex Court held that the said principles of re-consideration of a decision has been reiterated in the case of Union of India vs. Raghubir Singh [1989(2) SCC 754]. Also reference to Keshava Mills Co. Ltd. vs. CIT [(1965) 2 SCR 908], has been made to point out that the interest of the public should be a right and permissible compelling of reasons, reconsideration of the decisions of a Court for the public good.
(c) The recent decision of the Apex Court in M.Nagabhushana vs. State of Karnataka [2011(3) SCC 408], on the principles of constructive res judicata and principles of analogous to the same can also be usefully cited as follows:-
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"In view of such authoritative pronouncement of the Constitution Bench of this Court, there can be no doubt that the principles of constructive res judicata, as explained in Explanation IV to Section 11 CPC, are also applicable to writ petitions."
(d) The Apex Court in Shankar Co-op Housing Society Ltd., vs. M.Prabhakar & Others [2011 AIR SCW 3033], held that a second writ petition on the same cause of action cannot be filed and an issue which had attained finality cannot be entertained. In the said case, the Apex Court held that the High Courts ought not to entertain and grant relief to a writ petitioner, when there is inordinate delay and unexplained delay in approaching the Court and that subsequent writ petition is not maintainable in respect of an issue concluded between the parties in the earlier writ petitions.
(e) In fact, the Apex Court has also held that decisions rendered in a public interest litigation has a binding effect in State of Karnataka vs. All India Manufacturers Organization [AIR 2006 SC 1846], as long as the litigant acts bona fide, as a judgment in such a case binds the public at large and bars any member of the
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public from coming all the way to the Court and raising any connected issue or an issue which has been raised should have been raised on an earlier occasion by way of public interest litigation.
(f) In Forward Construction Co. And Others vs. Municipal Corporation of Greater Bombay And Others [AIR 1986 SC 391], the Apex court found fault with the High Court in holding that the earlier judgment would not operate as res judicata as one of the grounds taken in the subsequent petition was conspicuous by its absence in the earlier petition. Explanation IV to Section 11 CPC was relied upon to observe that any matter which might and ought to have been made a ground of defence or attack in such suits shall be deemed to be a matter directly or substantially issue in such suit. According to the Apex Court an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have it decided as incidental to or essentially connected with the subject matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matters of claim or
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defence. According to the Apex Court, the principle underlying Explanation IV is that there the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. It was further held that Section 11 of the CPC applies to the public interest litigation as well but it must be proved that the previous litigation was the public interest litigation, not by way of a private grievance, which was bona fide which is common and is agitated in common with others.
(g) In fact in Manipur Vasant Kini v. Union of India & Others [1998 (3) KLJ 121], a Division Bench of this Court has held that principle of res judicata applies even to public interest litigation initiated under Article 226 of the Constitution of India, even though such proceedings are not governed by the Code of civil procedure. A decision given on merits in respect of a public right claimed by the petitioners in common with others, would bind not only the petitioners, but also all other persons
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interested in such right and would operate as res judicata barring subsequent petition in respect of same matters.
(h) In S.Nagaraj (Dead) By L.Rs and Others vs. B.R.Vasudeva Murthy and Others [2010 (3) SCC 353], is also a case pertaining to the constructive res judicata. The Apex Court held that if a ground of attack had not been taken in any earlier proceedings, the same cannot be raised in a subsequent proceeding because of the principle of constructive res judicata under explanation 4 to Section 11 of the Code which is applicable to writ petitions.
24. Further, by the time the suit came to be filed i.e., in the year 2010, the agreement as per Ex.D27 for which the license was granted had expired in the year 2008. The period of license had come to an end. The question of restoration of the dealership of the plaintiff does not now arise, since the license was terminated in the year 2001 and after nearly seven years thereafter the period mentioned in the agreement has expired. Further, the Civil Court and this Court have also not directed the authorities for continuation of the dealership for that period.
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25. In the case on hand, the contract has been terminated by BPCL for breach of contractual terms, for which several opportunities had been granted by the Authorities to show cause the reasons for breach. The subsequent termination by the BPCL implies that the petitioner was unsuccessful in showing cause for the breach on his part, which has been observed by this Court.
26. BPCL, though being a State entity, had entered into a contract with a private party for supply of petroleum and its products. The parties entered into a contract thereby agreeing to the terms and conditions of it. This is a case where, the petitioner was found to be in default of the terms and conditions contained in the agreement on several occasions. The Company issued show cause notice in that regard asking as to why the dealership should not be terminated and upon dissatisfactory response from the Petitioner, the Corporation terminated the dealership in the year 2001. In my view, the dealership agreement was terminable by the respondent as there were several
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breaches in the covenants of the dealership agreement as held by this Court in the regular first appeal. Therefore, invoking clause 13(a)(iv), (v) of the dealership agreement, the Corporation was given liberty to terminate the agreement forthwith in case of breach of the agreement and for any other reason. It has been held by the Hon'ble Supreme Court in the case of Indian Oil Corporation Ltd. v. Amritsar Gas Service and Others [(1991) 1 SCC 533], that "distributorship agreement which contained a clause that entitled either party to terminate the agreement with thirty days prior notice and without assigning any reason was "determinable" in nature and hence, could not be specifically enforced".
27. Further, the matter pertaining to termination of dealership has already been contested in several petitions as well as in the suit and in the appeal filed before this Court and the petitioner has been unsuccessful. Only for the reason that the petitioner has been unsuccessful in previous rounds of litigation, he cannot re- agitate the matter once again before this Court as it has already been settled by this Court while affirming the judgment of the trial Court in the suit filed by petitioner. In
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that view of the matter, this petition does not warrant further consideration by this Court. Furthermore, petitioner has been granted sufficient opportunity to present his case before various authorities and fora and the petitioner cannot once again approach this Court seeking redressal of the very same grievance and seek similar relief and dissipate precious judicial time.
28. In the result, the writ petition is dismissed. Parties to bear their respective costs.
Sd/-
JUDGE mvs/s*