Kerala High Court
Leashar vs Bharat Petroleum Corporation Limited on 12 January, 2021
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY, THE 12TH DAY OF JANUARY 2021/22TH POUSHA, 1942
WP(C).No.15053 OF 2014(F)
PETITIONERS:
1 LEASHAR, S/O.NARAYANAN, AGED 48 YEARS,
VRINDAVANAM, CHEPPAD, KANNIMAL,
CHEPPAD P.O., ALAPPUZHA DISTRICT - 690 507.
2 SANGEETHA RANI, W/O.SURENDRAN R.,
AGED 41 YEARS,PANACKAL PADEETTATHIL,
RAMAPURAM, KURIKKAD P.O., ALAPPUZHA.
BY ADVS.
SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
SRI.A.R.DILEEP
SRI.P.J.JOE PAUL
SRI.MANU SEBASTIAN
RESPONDENTS:
1 BHARAT PETROLEUM CORPORATION LIMITED,
TRIVANDRUM LPG TERRITORY OFFICE,
REPRESENTED BY TERRITORY MANAGER,
LPG BOTTLING PLANT, POST BOX NO.6,
KAZHAKOOTTAM P.O.,
THIRUVANANTHAPURAM - 695 522.
2 TERRITORY MANAGER,
BHARAT PETROLEUM CORPORATION LIMITED,
TRIVANDRUM LPG TERRITORY OFFICE,
LPG BOTTLING PLANT, POST BOX NO.6,
KAZHAKOOTTAM P.O.,
THIRUVANANTHAPURAM - 695 522.
3 SHIBUKUMAR, VRINDAVANAM,
CHEPPAD KIZHAKKUM MURI,
CHEPPAD P.O.,
ALAPPUZHA DISTRICT - 690 507.
R1-R2 BY ADV. SRI.P.BENNY THOMAS
R1-R2 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR
WP(C) No.15053&18546/2014
:2 :
R1-R2 BY ADV. SRI.K.JOHN MATHAI
R1-R2 BY ADV. SRI.JOSON MANAVALAN
R3 BY ADV. SRI.V.M.KURIAN
R1-R2 BY ADV. SRI.KURYAN THOMAS
R1-R2 BY ADV. SRI.A.V.THOMAS SR.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 12.01.2021, ALONG WITH WP(C).18546/2014(P), THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) No.15053&18546/2014
:3 :
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY, THE 12TH DAY OF JANUARY 2021/22TH POUSHA, 1942
WP(C).No.18546 OF 2014
PETITIONER:
R.N.SHIBUKUMAR, VRINDAVAN, CHEPPAD,
CHEPPAD P.O., ALAPPUZHA DISTRICT,
PIN-690 507.
BY ADVS.
SRI.A.V.THOMAS (SR.)
SRI.MATHEW B. KURIAN
SRI.K.T.THOMAS
RESPONDENTS:
1 BHARAT PETROLEUM CORPORATION LIMITED,
TRIVANDRUM LPG TERRITORY OFFICE,
LPG BOTTLING PLANT, P.B.NO.6,
KAZHAKOOTTAM, THIRUVANANTHAPURAM-695 522,
REPRESENTED BY ITS TERRITORY MANAGER.
2 THE TERRITORY MANAGER,
BHARAT PETROLEUM CORPORATION LIMITED,
TRIVANDRUM LPG TERRITORY OFFICE,
LPG BOTTLING PLANT, P.B.NO.6,
KAZHAKOOTTAM, THIRUVANANTHAPURAM-695 522.
3 LEASHAR, RADHEYAM, CHEPPAD,
CHEPPAD P.O., ALAPPUZHA DISTRICT- 690 507.
4 SANGEETHA RANI, PANAKKAL PADEETTATHIL,
RAMAPURAM, KUREEKKAD P.O.,
ALAPPUZHA DISTRICT-690 509.
R1-R2 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR
R1-R2 BY ADV. SRI.P.BENNY THOMAS
R1-R2 BY ADV. SRI.K.JOHN MATHAI
WP(C) No.15053&18546/2014
:4 :
R1-R2 BY ADV. SRI.JOSON MANAVALAN
R1-R2 BY ADV. SRI.KURYAN THOMAS
R3 BY ADV. SRI.GEORGE VARGHESE PERUMPALLIKUTTIYIL
R3-R4 BY ADV. SRI.A.R.DILEEP
R3-R4 BY ADV. SRI.MANU SEBASTIAN
R3-R4 BY ADV. SRI.P.J.JOE PAUL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 12.01.2021, ALONG WITH WP(C).15053/2014(F), THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) No.15053&18546/2014
:5 :
JUDGMENT
~~~~~~~~~ Dated this the 12th day of January, 2021 [W.P.(C) Nos.15053 & 18546 of 2014] Both these petitions have been filed by children of late Smt. K. Lakshmi, seeking to assert their claims to run Dhana Lekshmi Gas Agencies. Parties are referred to in this judgment as they are arrayed in W.P.(C) No.18546 of 2014, for convenience.
2. Late Sri. Radhakumar, son of Smt. Lakshmi, was a soldier in Indian Army. He attained martyrdom during the Kargil War in 1999. The Government of India, in honour of late Sri. Radhakumar, directed the Bharat Petroleum Corporation Limited (BPCL) to award an LPG Distributorship at Nangiarkulangara, to mother Smt. Lakshmi under the Operation Vijay Scheme. The BPCL issued a letter of intent to WP(C) No.15053&18546/2014 :6 : Smt. Lakshmi on 17.03.2000.
3. Issues arose between siblings of late Sri.Radhakumar, when their mother Smt. Lakshmi passed away on 20.02.2014. The petitioner in W.P.(C) No.18546/2014, who is brother of late Sri.Radhakumar, claimed that mother Smt. Lakshmi during her lifetime, had executed a Will on 08.01.2014, under which the LPG Distributorship and its assets were bequeathed to him. On the basis of the said testamentary disposition, the petitioner by letter dated 21.02.2014 requested the BPCL to appoint him as the Distributor of LPG as a sole proprietor. Though the BPCL initially issued a letter dated 22.02.2014 appointing the petitioner as temporary distributor, on 12.04.2014, the BPCL issued another communication requiring him to produce certain documents for reconstitution. The communication stated that the petitioner shall produce NOC from all legal heirs. If they are not interested in operating the Distributorship or else all legal heirs should submit their application with full bio-data and their request for induction as partner. WP(C) No.15053&18546/2014 :7 :
4. The petitioner stated that in view of the Will executed by his mother, he exclusively is entitled to the LPG Distributorship as a sole proprietor. The siblings of the petitioner are not willing to issue NOC to the petitioner. Consequently, the BPCL is not allotting the LPG Distributorship to him. It is aggrieved by the refusal of the BPCL to allot him the LPG Distributorship hitherto run by his mother that the petitioner is before this Court.
5. Respondents 3 and 4 in W.P.(C) No.18546/2014, who are brother and sister of the petitioner, filed W.P.(C) No.15053/2014. Respondents 3 and 4 disputed the claim of the petitioner for exclusive right over the LPG Distributorship on the strength of the impugned Will. Respondents 3 and 4 stated that they have made a proposal for reconstitution of the gas agency with themselves as partners. However, the BPCL is not taking a decision. If the distributorship is terminated without considering their representation, respondents 3 and 4 will be put to untold hardship. Therefore, respondents 3 and 4 prayed that the BPCL be directed to reconstitute the LPG WP(C) No.15053&18546/2014 :8 : Distributorship with respondents 3 and 4 as partners by accepting the proposal made by them.
6. During the hearing, counsel for the petitioner as well as the counsel for respondents 3 and 4 stated that the parties have contested civil litigations wherein the validity of the Will allegedly executed by late Smt. Lakshmi was disputed and a competent Civil Court has found against the petitioner and has held that the alleged Will is not valid. The said finding has become final. During the pendency of the writ petitions, the parties resorted to mediation for arriving at a mediated settlement as regards their inter-se claims. But, the mediation failed as the parties could not arrive at an agreement.
7. The learned counsel for the petitioner would contend that the LPG Distributorship was allowed to the petitioner's mother and the petitioner was running the Distributorship helping his mother in the business. The learned counsel for the petitioner would submit that the petitioner's mother decided to give the Distributorship and its assets to the petitioner after her death. The petitioner is WP(C) No.15053&18546/2014 :9 : therefore entitled to succeed. The learned counsel for the petitioner would further urge that taking into account the factual situation, the petitioner should be granted the Distributorship even without consent of other legal heirs.
8. The learned counsel for the petitioner further pointed out that as per Clauses 3.3.4 and 3.3.5 of the Guidelines issued by the BPCL, in case of death of the sole Distributor, the constitution may be made in favour of the legal heir. If any legal heir has expressed unwillingness, the Distributorship shall be terminated. Clause 3.3.5 provides that if the legal heirs express unwillingness, the Distributorship shall be reconstituted with the surviving partner. A reading of the Guidelines would show that the legal heir gets a right to be allotted with the Distributorship on the death of the licensee.
9. The counsel for the petitioner further submitted that the petitioner has been successfully running the LPG Distributorship during the life of his mother as well as thereafter on the basis of temporary allotment. The business is a running business and justice and balance of convenience WP(C) No.15053&18546/2014 : 10 : demand that the petitioner be permitted to run the Distributorship.
10. The counsel for respondents 3 and 4 would submit that a conjoint reading of Clauses 3.3 to 3.7 of Ext.P2 makes it clear that the gas agency could be reconstituted with respondents 3 and 4 as partners, to the exclusion of the petitioner. Since the petitioner has expressed his unwillingness to join respondents 3 and 4 as per plans, during the meeting held by the officials of the BPCL, respondents 1 and 2 have a right to reconstitute the Distributorship with them as partners.
11. The learned counsel for respondents 3 and 4 further submitted that the BPCL ought to have rejected the claim put forth by the petitioner. Since the BPCL Guidelines provide for constitution of partnership with all legal heirs on the demise of the approved Distributor and since the petitioner has refused to join as a partner, the BPCL should necessarily permit the remaining legal heirs to constitute a partnership to run the business. In the circumstances, respondents 1 and 2 WP(C) No.15053&18546/2014 : 11 : are bound to permit reconstitution of Dhana Lekshmi Gas Agencies with respondents 3 and 4 as partners accepting the proposal made by them.
12. The learned Standing Counsel representing respondents 1 and 2 would submit that the Distributorship of Smt.Lakshmi cannot be alienated or inherited. Her Distributorship of LPG is governed by the Policy Guidelines for Reconstitution of Retail Outlet framed by the petroleum companies from time to time. In case of death of the sole proprietor, reconstitution can be considered by the petroleum companies in favour of legal heirs/family members with the consent of all legal heirs. As one of the legal heirs has unequivocally expressed his disagreement in joining with a partnership inclusive of all legal heirs, as long as the dissenting legal heir does not give his NOC, the BPCL cannot assign the Distributorship either to the petitioner as a sole proprietorship or to respondents 3 and 4 as a partnership.
13. I have heard the learned counsel for the petitioner, learned counsel for respondents 3 and 4 and learned WP(C) No.15053&18546/2014 : 12 : Standing Counsel appearing for respondents 1 and 2 in W.P. (C) No.18546/2014. Clause G(4) of the Policy Guidelines for reconstitution of retail outlet governing the 1 st respondent, reads as follows:-
"In cases of death of the sole proprietor/all partners, reconstitution may be made in favor of the legal heir(s)/family members(s) with the consent of legal heir(s). In such case, induction of outside partner(s) will also be permitted. However, the maximum share of outside Incoming partners(s) will be restricted up to 49% till a period of 3 years from the date of commissioning. In cases of death of the sole proprietor/all partners, if there is no eligible legal heirs(s)/family members(s)/nominee(s) of the sole proprietor/Partners(s) or legal heir(s)/family member(s)/nominee(s) of the Sole proprietor/Partner(s) express unwillingness, the dealership shall be terminated."
14. Therefore, it is clear that reconstitution of sole proprietorship on the death of the sole proprietor can be permitted to be made in favour of the legal heirs/family members only with the consent of all legal heirs. In the case of the petitioner and respondents 3 and 4, the petitioner does not desire to join in partnership with respondents 3 and 4 and also not willing to give NOC to the BPCL for reconstitution with respondents 3 and 4 as partners. Though in the writ petition WP(C) No.15053&18546/2014 : 13 : respondents 3 and 4 claimed that they alone should be permitted to form into a partnership to the exclusion of the petitioner, at the time of hearing, respondents 3 and 4 expressed their willingness to take the petitioner also as a partner. However, the petitioner is not ready to join in such a partnership.
15. Clause 9 the Policy Guidelines reads as follows:-
"In case where there is no NOCs from Nominee(s)/Legal Heir(s) who are not eligible to become Dealer. In case of death, where one or more Nominee(s)/Legal Heir(s) are not willing to give relinquishment or NOC in favour of incoming/surviving Proprietor/Partner(s) despite the fact that these Nominee(s)/Legal heir(s) may not be eligible to become dealer as per Disqualification norm of Dealer Selection guidelines, in such cases obtaining NOC/Relinquishment from such Nominee(s)/Legal heir(s) will not be mandatory.
However, the onus would be on the surviving/incoming Proprietor/Partner(s) of the dealership to provide conclusive documentary evidence with regard to disqualification of such Nominee(s)/Legal heirs(s) and OMC would also independently verity the authenticity of the same. In such cases, OMCs may issue a communication to the concerned Nominee(s)/Legal heir(s) to submit documentary proof with regard to their eligibility within 30 days from the date of the letter. In case no response is received, the OMC can approve reconstitution of the dealership excluding such Nominee(s)/Legal heir(s). However the surviving/incoming Proprietor/Partner(s) of the dealership will have to indemnify the OMC against (Annexure-J2) any claims or demands which may be WP(C) No.15053&18546/2014 : 14 : made in future.
For cases where letters written to such nominee(s)/Legal heir(s) gets returned undelivered. Such cases to be treated as "Nominees(s)/Legal Heir(s)/Partner(s) is/are not traceable" and further action is to be taken in accordance with the same."
16. In view of the above, where a legal heir is not willing to give NOC in favour of incoming partners despite the fact that where such nominee/legal heir is not eligible to become Distributor as per disqualification norms of Distributorship Selection Guidelines, in such cases obtaining NOC/relinquishment from such nominee/legal heir will not be mandatory. However, the onus would be on the incoming partners to provide conclusive documentary evidence with regard to disqualification of such legal heir and OMC would independently verify the authenticity of the same. The counsel for respondents 3 and 4 would contend that the petitioner has acquired disqualification and therefore respondents 1 and 2 are bound to allow the request of respondents 3 and 4 to constitute a partnership and run the Distributorship. WP(C) No.15053&18546/2014 : 15 :
17. From the Policy Guidelines, it is evident that it is a matter to be decided by respondents 1 and 2 after independent verification of the authenticity of such claims. This Court cannot issue a Mandamus in that regard.
18. For all the above reasons, this Court is of the firm opinion that neither the petitioner nor respondents 3 and 4, in the facts and circumstances of the case, can stake a claim that the petitioner or respondents 3 and 4 are entitled as of right, to assignment of LPG Distributorship on the demise of their mother.
Both the writ petitions are therefore without any legal force and they are accordingly dismissed.
Sd/-
N. NAGARESH, JUDGE aks/18.01.2021 WP(C) No.15053&18546/2014 : 16 : APPENDIX OF WP(C) 15053/2014 PETITIONERS' EXHIBITS:
EXHIBIT P1 A TRUE COPY OF CERTIFICATE OF DEATH OF LEKSHMI EXHIBIT P2 A TRUE COPYOF GUIDELINES FOR RECONSTITION OF DISTRIBUTORSHIPS OF THE 1ST RESPONDENT EXHIBIT P3 A TRUE COPY OF PLAINT IN OS NO.143/2014 BEFORE THE COURT OF MUNSIFF, HARIPAD EXHIBIT P4 A TRUE COPY OF NOTICE DATED 16.04.2014 ADDRESSED TO THE 2ND RESPONDENT EXHIBIT P5 A TRUE COPY OF THE MINUTES OF THE MEETING ON RECONSTITUTION HELD ON 25.04.2014 EXHIBIT P6 A TRUE COPY OF REPRESENTATION DATED 10.05.2014 MADE BY THE PETITIONERS TO THE 2ND RESPONDENT EXHIBIT P7 A TRUE COPY OF THE MINUTES OF THE MEETING ON RECONSTITUTION HELD ON 13.05.2014 EXHIBIT P8 A TRUE COPY OF NOTICE DATED 07.06.2014 SEND BY THE 3RD RESPONDENT EXHIBIT P9 A TRUE COPY OF PARTNERSHIP DEED DATED 24.01.2015.
EXHIBIT P10 A TRUE COPY OF REPRESENTATION DATED 24.01.2015 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.
EXHIBIT P11 A TRUE COPY OF COVERING LETTER DATED 28.01.2015.
WP(C) No.15053&18546/2014 : 17 : RESPONDENTS' EXHIBITS EXHIBIT R3(a) TRUE COPY OF SALE DEED NO.39/2000 OF KEERIKKAD SUB REGISTRY OFFICE IN FAVOUR OF THE 2ND PETITIONER EXHIBIT R3(b) TRUE COPY OF SALE DEED NO.2283/1999 OF KEERIKKAD SUB REGISTRY OFFICE IN FAVOUR OF SMT.LAKSHMI WP(C) No.15053&18546/2014 : 18 : APPENDIX OF WP(C) 18546/2014 PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE LETTER OF INDENT DT.17- 3-2000 ISSUED BY R1.
EXHIBIT P2 TRUE COPY OF THE WILL NO.4/III/2014 OF KEERIKKAD SUB REGISTRY EXECUTED BY SMT.LAKSHMI.
EXHIBIT P3 TRUE COPY OF THE SETTLEMENT DEED NO.52/2014 OF KEERIKKAD SUB REGISTRY.
EXHIBIT P4 TRUE COPY OF THE LETTER DT.22-2-2014 ISSUED BY THE R1.
EXHIBIT P5 TRUE COPY OF THE LETTER DT.20-5-2014 ISSUED BY R1 TO THE PETITIONER.
EXHIBIT P6 TRUE COPY OF THE LETTER DT.19-6-2014 SUBMITTED BY THE PETITIONER.
EXHIBIT P7 TRUE COPY OF THE MINUTES OF THE MEETING OF RECONSTITUTION OF DISTRIBUTORSHIP HELD ON 17-6-14.
EXHIBIT P8 TRUE COPY OF THE LETTER DT.12-4-2014 ISSUED BY R1.
EXHIBIT P9 TRUE COPY OF THE MINUTES OF THE MEETING OF RECONSTITUTION OF DISTRIBUTORSHIP HELD ON 13-5-14.
EXHIBIT P10 TRUE COPY OF THE LETTER DT.26-6-2014 SUBMITTED BY THE PETITIONER BEFORE R2.
EXHIBIT P11 TRUE COPY OF THE PLAINT IN OS 143/2014 OF THE MUNSIFFS COURT, HARIPPAD.
EXHIBIT P12 TRUE COPY OF THE IA 735/2014 IN OS 143/2014 OF THE MUNSIFF COURT, HARIPPAD.
EXHIBIT P13 TRUE COPY OF THE GUIDELINES ISSUED BY R1.
WP(C) No.15053&18546/2014 : 19 : RESPONDENTS' EXHIBITS:
EXHIBIT R3(a) TRUE COPY OF DEATH CERTIFICATE OF LEKSHMI.
EXHIBIT R3(b) TRUE COPY OF GUIDELINES FOR RECONSTITUTION OF DISTRIBUTORSHIP OF THE IST RESPONDENT.
EXHIBIT R3(c) TRUE COPY OF PLAINT IN O.S.NO.143/2014 BEFORE THE COURT OF MUNSIFF, HARIPAD.
EXHIBIT R3(d) TRUE COPY OF NOTICE DATED 16.4.2014 ADDRESSED TO THE 2ND RESPONDENT.
EXHIBIT R3(e) TRUE COPY OF THE MINUTES OF THE MEETING ON RECONSTITUTION HELD ON 25.4.2014.
EXHIBIT R3(f) TRUE COPY OF REPRESENTATION DATED 10.5.2014 MADE BY THE RESPONDENTS TO THE 2ND RESPONDENT.
EXHIBIT R3(g) TRUE COPY OF MINUTES OF THE MEETING ON RECONSTITUTION HELD ON 13.5.2014.
EXHIBIT R3(h) TRUE COPY OF NOTICE DATED 7.6.2014 SEND BY THE 3RD RESPONDENT.
EXHIBIT R3(i) TRUE COPY OF PARTNERSHIP DEED DATED 24.1.2015.
EXHIBIT R3(j) TRUE COPY OF REPRESENTATION DATED 24.1.2015 SUBMITTED BY THE RESPONDENTS BEFORE THE 2ND RESPONDENT.
EXHIBIT R3(k) TRUE COPY OF COVERING LETTER DATED 28.1.2015.
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