Madhya Pradesh High Court
Smt. Vibha Raghuvanshi vs Union Of India Thr on 3 March, 2020
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
The High Court of Madhya Pradesh
WP 2420/2016
[Smt. Vibha Raghuvanshi vs. Union of India and Others]
And
WP 2422/2016
[Mahendra Singh Raghuvanshi vs. Union of India and Others]
Gwalior, dtd. 03/03/2020
Shri Sanjay Kumar Bahirani, Counsel for the petitioners in both writ
petitions.
Shri Anil Kumar Jain, Counsel for the Indian Oil Corporation Limited
in both writ petitions.
By this common order, Writ Petition No.2422/2016 [Mahendra
Singh Raghuvanshi vs. Union of India and Others ] shall also be decided.
(2) For the sake of convenience, the facts of Writ Petition No.2420/2016
shall be taken into consideration.
(3) This petition under Article 226/227 of the Constitution of India has
been filed, seeking the following reliefs:-
''7(1) That, in the facts and circumstances of the case,
and in the light of the order passed in WP No.14412/07 and
1669/09 the direction may kindly be issued to the respondent
company, that, continuation of the retailer under the M & H contract would be subject to final out come of the decision taken by the ministry of petroleum and natural gas as mentioned in circular dated 28/07/14.
(2) That, further respondents may kindly be directed that no coercive step be taken against him until and unless the policy of the res. no.1 is revised as contained in the RP No. 175/2015.
(3) That, any other suitable relief which the Hon'ble Court deem fit in the fact of the circumstances of the case. The cost of the present petition also may kindly be awarded.'' (4) The necessary facts for disposal of the present petition in short are that the IBP Oil Company had allotted the COCO (Company Owned & Company 2 Operated) Dealership of petrol pump and for establishment of COCO petrol pump, the petitioner had provided her land and a contract for maintenance and handling the petrol pump was executed between the petitioner and the IBP Company. After sometime, the IBP Company was abolished and the same stood merged with the Indian Oil Corporation Limited. (5) It is the case of the petitioner that she was running her retail outlet smoothly and was making profits. A policy decision dated 06/09/2006 was taken by the Ministry of Petroleum and Natural Gas to divestment of COCO dealership. The said policy was challenged by various dealers by filing various Writ Petitions before different High Courts, but the policy dated 06/09/2006 was upheld up-to the Supreme Court and it was held by the Supreme Court that COCO dealership has no connection with the concept of dealership.
(6) The Supreme Court in the case of Mohd. Jamal vs. Union of India and Another, reported in (2014) 1 SCC 201 has held as under:-
''60. In order to appreciate the difference between the two concepts, it has to be understood that the concept of a dealership in respect of a retail outlet is completely alien to the concept of a COCO unit. While the former deals with the right of the dealer to independently operate the retail outlet, in the case of a COCO unit, the entire set up of the retail outlet is owned by the Oil Companies and only the day-to-day operation thereof is outsourced to a M&H Contractor. With the discontinuance of the earlier policy of granting dealerships in respect of retail outlets and the introduction of a new policy awarding M&H Contracts in respect of the COCO outlets, in our view, the land owners who had entered into fresh lease agreements after the policy to grant dealerships had been suspended, cannot now claim any right on the basis of the earlier policy in the absence of any Letter of Intent having been issued thereunder. Had any Letter of Intent, which tantamounts to grant of dealership, been issued and then in respect of the same lands COCO units were established, the situation would have been 3 different. Placed in such a position, the land owners cannot claim any relief in these proceedings and, if any loss or damages have been suffered by them on account of the assurance earlier given regarding grant of dealership, particularly in making the sites ready therefor, the remedy of such applicants would lie elsewhere. The policy guidelines and, in particular, Clauses 1.2 and 1.2.2 thereof are not available to the Appellants and the Petitioners in these proceedings, which are concerned mainly with COCO units which have no connection with the concept of dealership.'' (7) It is the case of the petitioner that even prior to dismissal of the SLP by the Supreme Court, the Indian Oil Corporation Limited took a decision to terminate the dealership and accordingly, the termination order dated 23/10/2013 was passed. After the dismissal of SLPs, the Ministry of Petroleum and Natural Gas, took a somersault and and issued a letter dated 28th July, 2014 by which, it was directed that the divestment of all Company Owned Company Operated (COCO) including temporary COCOs may be kept in hold till the policy dated 6/9/2006 is reviewed. After the letter dated 28th July, 2014 was issued, the petitioner once again approached the Indian Oil Corporation Limited by stating that the termination of the dealership of the petitioner was passed on the basis of earlier policy decision dated 06/09/2006 and since the said policy has been kept in hold, therefore, no coercive step be taken till the policy dated 06/09/2006 is reviewed. In the light of the letter dated 28th July, 2014, the other COCO dealers approached the High Court by filing petition on the ground that in the light of the letter dated 28th July, 2014, the dealership may not be terminated until and unless the policy dated 06/09/2006 is revised.
(8) Review Petition No.175/2015 was disposed of by the Principal Bench of this Court by order dated 6th April, 2015, by observing that if the policy 4 made by the respondents is still in hold and is undergoing any review by the concerned Ministry, it would be appropriate for the respondents to take any action against the petitioner only after finalization of the policy. (9) It is submitted that, in spite of the fact that the policy dated 06/09/2006 has been kept in hold, the respondents have issued a notice (Annexure P10) under the provisions of Section 4 of Public Premises (Eviction of Unauthorized Occupants) Act, 1971 which is contrary to the decision of the Court. Thus, this petition has been filed for the reliefs mentioned above.
(10) Challenging the notice (Annexure P10) issued by the respondents/ Indian Oil Corporation Limited, under Section 4 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971, it is submitted by the counsel for the petitioner that the COCO dealership of the petitioner was terminated in the light of the policy dated 06/09/2006, but since that policy is under review, therefore, no further action should be taken under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971. (11) It is submitted that by order dated 3 rd August, 2016, an amendment in COCO Divestment Guidelines has been introduced. It is further submitted that various petitions were filed before the different High Courts of the country against the order dated 3rd August, 2016 including the High Court of Madhya Pradesh, which were stayed by the Supreme Court by order dated 31st July, 2017 passed in Transfer Petition Civil No(s).1173-1174/2017 and now, all the petitions have been transferred to the High Court of Gujarat. It is submitted that the amendment in COCO Divestment Guidelines, dated 3rd 5 August, 2016 is under challenge, therefore, until and unless the petitions which are pending before the Gujarat High Court are decided, no action may be taken against the petitioner.
(12) Per contra, the petition is vehemently opposed by the counsel for the Indian Oil Corporation Limited.
(13) Heard the learned counsel for the parties.
(14) The moot question for consideration is that whether the COCO dealership of the petitioner was terminated in view of the policy dated 06/09/2006 or not ?
(15) The order dated 23/10/2013 is the order of termination of Maintenance and Haulage Contract (in short '' M & H Contract''] and the relevant portion of the said order reads as under:-
'' You had been operating as our M & H Contractor at our COCO at Kolaras under the terms & conditions of the M & H Contract dtd. 30.03.2003.
You are already aware that your M & H Contract had expired on 29.03.2004 by efflux of time, however, you were allowed to continue to operate our COCO initially during the pendency of the WP filed before the Hon'ble High Court and subsequently during the pendency of the SLP bearing No.5349/2008 titled Sant Atam Prakash Vs UOI & Others before the Hon'ble Supreme Court.'' (16) Thus, it is clear that the M & H Contract of the petitioner has expired on 29th March, 2004 and the petitioner continued to operate a COCO dealership in view of the pendency of some writ petitions. (17) It is fairly conceded by the counsel for the petitioner that not only the termination order dated 23/10/2013 has not been challenged by the petitioner, but the M & H Contract had also come to an end on 29/03/2004 and 6 thereafter, no new contract was ever executed between the parties and the petitioner was allowed to operate the COCO dealership because of pendency of writ petitions before the Court.
(18) Thus, it is clear that the M & H Contract of the petitioner has not been terminated in the light of the policy dated 06/09/2006, but in fact, the M & H Contract of the petitioner has already outlived its life and the order dated 23/10/2013 passed by the Chief Divisional Retail Sales Manager for and on behalf of M/s. Indian Oil Corporation Ltd has attained finality as the same was never challenged. Even otherwise, the order of termination of M & H Contract was passed on 23/10/2013 whereas the petitioner is trying to take advantage of the letter issued on 28th July, 2014 i.e. much after the order of termination of M & H Contract was passed.
(19) The counsel for the petitioner could not point out as to how the letter dated 28th July, 2014 would come to the rescue of the petitioner specifically, when the contract was not terminated in the light of policy dated 06/09/2006 and further, at present there is no M & H Contract between the parties. (20) Thus, it is held that neither the petitioner is entitled for the benefit of letter dated 28th July, 2014 nor this petition can be kept in abeyance till final adjudication of the writ petitions which are pending before the Gujarat High Court against the amendment in COCO Divestment Guidelines dated 3 rd August, 2016.
(21) It is next contended by the counsel for the petitioner that even if it is held that the M & H Contract of the petitioner has already outlived its life, still then the respondents have no authority to issue a notice under Section 4 7 of Public Premises (Eviction of Unauthorized Occupants) Act, 1971 because admittedly, the petitioner is the owner of the land in dispute and she cannot be deprived from the fruits of the said land.
(22) Considered the submissions made by the counsel for the petitioner. (23) ''Public Premises'' has been defined under Section 2(e) of Public Premises (Eviction of Unauthorized Occupants) Act, 1971 which reads as under:-
''3(e) ''Public Premises'' means-
(1) any premises belonging to or taken on lease or requisitioned by, or on behalf of the Central Government, and includes any such premises which have been placed by that Government, whether before or after the commencement of the Public Premises (Eviction of Unauthorized Occupants) Amendment Act, 1980 (61 of 1980) under the control of the Secretariat of either House of Parliament for providing residential accommodation to any member of the staff of that Secretariat.
(2) any premises belonging to, or taken on lease by, or on behalf of,-
(i) any company as defined in section 3 of the Companies Act, 1956 (1 of 1956) in which not less than fifty-one per cent.
of the paid-up share capital is held by the Central Government; and (ii) any Corporation (not being a company as defined in section 3 of the Companies Act,1956 (1 of 1956) or a local authority) established by or under a Central Act and owned or controlled by the Central Government; and (2) in relation to the Union territory of Delhi-- (i) any premises belonging to the Municipal Corporation of Delhi or any municipal committee or notified area committee, and (ii) any premises belonging to the Delhi Development Authority whether such premises are in the possession of, or leased out by, the said Authority .'' (24) From the plain reading of this Section, it is clear that the proceedings for eviction from the property taken on lease is also maintainable. Furthermore, this petition has been filed against the notice dated 05/02/2016 (Annexure P10) issued under Section 6 of Public Premises (Eviction of 8 Unauthorized Occupants) Act, 1971. Admittedly, the petitioner has not filed any reply to the said notice. Until and unless, it is prima facie established that the notice issued by the respondents/ Indian Oil Corporation Limited is without jurisdiction, this Court is of the considered opinion that the writ petition is not maintainable.
(25) Accordingly, this petition dismissed as misconceived with liberty to the petitioner that if she so desires, then she can participate in the eviction proceedings initiated by Annexure P10 and the competent authority shall be under obligation to decide all the objections which may be raised by the petitioner.
(26) The interim order dated 18/04/2016 by which the parties were directed to maintain the status quo is hereby recalled. (27) Accordingly, Writ Petition No.2422/2016 [Mahendra Singh Raghuvanshi vs. Union of India and Others] is also dismissed with the aforesaid liberty.
(G.S. Ahluwalia) Judge MKB MAHENDRA KUMAR BARIK VALSALA 2020.03.05 14:33:25 +05'30' VASUDEVAN 2018.10.26 15:14:29 -07'00'