Calcutta High Court (Appellete Side)
Suparna Bera Giri & Anr vs Bharat Petroleum Corporation Ltd. & Ors on 14 December, 2017
Author: Mir Dara Sheko
Bench: Mir Dara Sheko
1
14.12.2017
1865/skp.
W.P. 28232 (W) of 2017
Suparna Bera Giri & Anr.
Vs.
Bharat Petroleum Corporation Ltd. & Ors.
Mr. Debabrata Saha Roy,
Mr. Pingal Bhattacharyya,
Mr. Subhankar Das .... for the petitioners.
Mr. Sanjib Kr. Mal,
Mr. Bimalendu Das,
Miss. Shomrita Das ... for the respondent
Nos. 1,2 & 3.
Mr. Supratim Laha, Ms. Kritika Singh, Ms. Rashmi Kedia ... for the respondent no. 9 (in W.P. 28236(W) of 2017).
Mr. Puspendu Chakraborty ... for the respondent
Nos. 7,8 and 9.
Mr. Subhankar Chakraborty,
Mr. Saptarshi Datta,
Mr. Saptarshi Bhattacharjee ... for the respondent
Nos. 4,5 and 6.
Affidavit of service filed in Court today be kept on record.
Heard Mr. Saha Roy, learned senior Counsel being assisted by Mr. Pingal Bhattacharyya, representing the writ petitioners and Mr. Sanjib Kr. Mal, learned Counsel representing the respondent nos. 1,2 and 3 and the set of respondent nos. 4,5 and 6 and the set of respondent nos. 7,8 and 9.
Mr. Saha Roy submitted that the status of the writ petitioners as LPG Distributor was under Bharat Petroleum Corporation Ltd. under Rajiv Gandhi LPG Vitrak, shortly known as "RGGLV" at the location of Mathari, Narayandari, Nayabasan, Uttar Dhalhara, Khandagram, Biswas, Bamanara-'R', within the district of Purba Medinipur. Submitted that in terms of agreement dated 25th day of March, 2015 his clients have been continuing the distributorship of LPG in the location by maintaining the Clauses of agreement and there was never any complaint from the locality whatsoever. Amongst the clauses Mr. Saha Roy invited attention of this Court to Clause (v) of such agreement dated 25th day of March, 2015 which is set out hereubelow : 2
"(v) The GRAMIN LPG VITRAK shall make his best efforts for enrolling customers and canvassing business and for developing and increasing the sale of LPG within the area allotted to him."
In view of above clause submitted that his clients accordingly, by persuading with labour and engaging adequate number of labourers had been able to increase the status of its LPG distributorship from RGGLV to GRAMIN LPG VITRAK. Mr. Saha Roy apprised the Court that by enhancing such status of distributorship his clients have been enjoying the facility to deal with the customers by operating within the area of 50 kilometers radius from the limit of LPG distributorship location, meaning thereby, his clients have been able to increase the supply of refill nos. 2236 as on 18th August, 2016, and number of its supplies might have been increased more by this time. Submitted further that in view of change of status new agreement was executed on 30th September, 2016 with the Bharat Petroleum Corporation Ltd. and in this way his clients have been continuing the LPG Distributorship business. Mr. Saha Roy also invited attention to the text of the industry meeting by which the location "R1/Rural and Rural Market"
have been specified.
Grievance of the writ petitioners is, as ventilated, that nonetheless of smooth distributorship system conducted by his clients with the above elevated status the respondents on 31st August, 2017 published advertisement inviting application to fill up vacancies of LPG Distributorship covering also location/area where the writ petitioners have been distributed LPG gas. According to Mr. Saha Roy, this fresh advertisement for appointment of LPG Distributorship that too in more in number in the location where there is no vacancy, rather the area is already covered by distribution being held by the writ petitioners is unconstitutional and opposed to public policy. Therefore, in the tune of assertion made in paragraphs 14 and 15 of the writ petition, Mr. Saha Roy concluded his argument praying to issue relief in the tune of the prayer as made in the writ petition and relied on the case of a Division Bench of this Court where an order of interim nature was passed on 26th May, 2016.
However, submitting that the Oil Corporation, if they so chose, may appoint as many as distributorship but may not de-link either of the consumers lying under distributorship of his clients.3
Learned Counsel representing the respondent nos. 1 to 3 inviting attention of this Court to Clause B(ii) of the agreement dated 25th day of March, 2015 and Clause (v) of the addendum dated 30th September, 2016 per contra, replied that the authority had right to appoint more than one additional GRAMIN LPG VITRAK as well as distributor it would not be depending upon the objection if any raised by any distributor appointed by any corporation on the plea that as the area was covered by one distributor in that area, any other distributor or Vitrak should not be appointed in that area. Submitted that the distributorship of LPG is stretched for the public interest and it is always made beneficial to the public and it would be the choice to the consumers who would remain under which distributorship to enjoy his own consumership. In support of such contention, Mr. Mal representing the respondent nos. 1 to 3 relied upon the following cases :
i) Goutam Giri vs. Union of India in W.P. No. 27112(W) of 2017 delivered by Calcutta High Court on 15.11.2017.
ii) Nataraja Agencies vs. The Secretary, Ministry of Madras delivered by Madras High Court on 7th December, 2004.
iii) Gramin LPG Vitrak Association (Bihar) and Anr. Vs. The Union of India & Ors. in Civil Writ Jurisdiction Case Nos. 12282 of 2017 with 14040 of 2017 delivered on 17.11.2017.
iv) S. Shanmugharaja vs. The District Collector Puducherry District Puducherry & Ors., delivered by Madras High Court on 04.09.2017.
v) Mithilesh Garg vs. Union of India and Ors. on 22nd November, l991.
Perused the materials on record and the decisions cited at the Bar, the order of interim nature on which Mr. Saha Roy relied on a judgment being M.A.T. 942 of 2016 passed by single Bench of this Court on 26.05.2016 which is quoted below :
"Since it is pointed out to us by Mr. Bandyopadhyay, learned senior counsel appearing for the appellant that the selection of location for appointment of distributor has not been done by the industry LPG team in terms of the guidelines for selection of regular LPG distributorship applicable to all locations advertised/readvertised after 1st October, 2010, this Court passes an interim order to this extent that pending disposal of the appeal, if any additional appointment is given to any other distributor in the concerned locality; such distributor/distributors may carry on their respective businesses within their respective zone of operation without de-linking the existing customers of the writ petitioner/appellant."4
Now, amongst the materials on record, it is needless to mention that the parties specially the writ petitioners cannot travel beyond the Clauses as created upon for proper appraisal of the agreement so far as the lis is concerned in the writ petition the Clause B(ii) at page 40 from the agreement dated 25th March, 2015 is quoted below :
"(ii) The Corporation reserves the right, without any reference to or consent of the GRAMIN LPG VITRAK, to appoint one or more additional GRAMIN LPG VITRAKs in the same territory referred to in Clause 1(a) aboe and such additional GRAMIN LPG VITRAK OR GRAMIN LPG VITRAKs shall be entitled to make sales of Bharatgas in the same territory without any objection from the GRAMIN LPG VITRAK and GRAMIN LPG VITRAK shall not be entitled to claim any over-riding remuneration, Commission or allowance for the purpose."
The aforesaid Clause leaves no doubt that the Corporation has the right even without reference or consent of GRAMIN LPG VITRAK to appoint not only one but more than one additional GRAMIN LPG VITRAK in the same territory.
Of course, due to increase in the LPG consumership the status of the petitioners has been increased from RGGLV Distributors to the status of GRAMIN VITRAK in accordance with Unified Guidelines for Selection of LPG Distributorships 2016.
Further the agreement dated 30th September, 2016 cannot be captioned as a new agreement, rather it is addendum to the principal agreement dated 25th day of March, 2015 and that has been clearly stated in the said addendum in clause (4) which is set out hereunder :
"4. To avoid any doubt it is made clear that this only an Addendum to the Principal Agreement. All other clauses of the said Principal Agreement shall remain unchanged unless modified in writing and signed by both the Parties."
Therefore, when all other clauses of the Principal Agreement remain unchanged and there was no scintilla of evidence that within the period there was any modification then all terms including the terms laid down in Clause B(ii) of the agreement dated 25th March, 2015 would come into play. All the cases cited by Mr. Mal virtually are on the same observations of which the case of Gramin LPG Vitrak Association (Bihar) is taken as the leading one since in that case before the Patna High Court not an individual distributor but the Gramin LPG Vitrak Association as a whole in respresentative capacity had ventilated their grievance where the lis is the same and similar like all other cases including the case on hand. Because, in the said writ petition the Association had assailed the advertisement dated 17th June, 2017 published by the Oil 5 Corporations by which 974 new locations were advertised for appointing LPG Distributor-cum- Gramin Vitrak in the State of Bihar.
In the case in hand also the advertisement was made jointly by the three Oil Corporations by which 631 new locations had been advertised for appointing LPG Distributor-cum-Gramin Vitrak , within which of course the area belonging to the writ petitioners is also falling.
During foregoing discussion with reference to Clause B(ii) of the agreement (supra), it has been observed that the right is reserved with the Corporation for appointing more additional Gramin LPG Vitrak in the same territory, nonetheless of having distributorship occupying the area for distribution of LPG. Now in the case of Gramin LPG Vitrak Association (supra), there was submission, of course on apprehension that in the event of appointment on the basis of said advertisement the LPG Distributors/Gramin Vitrak may reduce the area of operation lying under the present control of the writ petitioners and thus there could be severely impact on the viability of their businesses and also a chart was prepared and placed before the High Court of Madras to illustrate as to how adverse effect would result from the fresh selection. Ultimately, the Madras High Court though it was a Single Bench observed as follows :
"6. ......that the purpose of advertising new locations for LPG distributorships is to reach out to the rural areas in the State. As such, it expressed the view that such a step taken by the respondents was in the larger public interest.
7. This Court is of the view that in matters of policy, the scope for judicial review is rather limited. The submissions of the petitioners that fresh selection of LPG Distributors/Gramin Vitraks is likely to impact their businesses adversely cannot be allowed to override or undermine the larger public interest furtherance of which the Oil Companies are required to ensure by acting in a manner that ensures supply and availability of LPG to each and every household. A business concern must decide its own viability based on commercial considerations. Therefore, no case for interference is made out. The writ petitions stand dismissed."
This Court in the case of Goutam Giri vs. Union of India & Ors. (supra) took the same view holding as follows :
"Neither the writing dated August 23, 2016 nor the guidelines for selection LPG distribuors permits one to infer with that a distributor has exclusive area of operation of 15 km. Moreover, the petitioner had agreed not to object to the appointment of fresh distributors in his area of operation, in writing. The petitioner cannot be allowed to act in derogation of his promise given in writing. Appointment of new distributors is in public interest.
In such circumstances, I am not minded to interfere in the present writ petition."6
The case of Mithilesh Garg Etc. Etc. vs. Union of India and Ors. (supra) though relates to stage-carnage operators on different routes but its ratio decidendi is also very much applicable in this case since Their Lordships of the Apex Court observed in dismissing the apprehension of the writ petitioner with the following observations :
"As mentioned above the petitioners are permit holders and are existing operators. They are plying their vehicles on the routes assigned to them under the permits. They are in the full enjoyment of their fundamental right guaranteed to them under Article 19(1)(g) of the Constitution of India. There is no threat of any kind whatsoever from any authority to the enjoyment of their right to carry on the occupation of transport operators. There is no complaint of infringement of any of their statutory rights. Their only effort is to stop the new operators from coming in the field as competitors. We see no justification in the petitioners' stand. More operators mean healthy-competition and efficient transport system."
In the case of Nataraja Agencies (supra) His Lordship in the similar line held as follows :
"4. In the present case, the only grievance of the appellant is that if the fourth respondent is permitted to set up her retail outlet within one kilometer radius of the appellant's outlet, his business interest would be adversely affected. In our opinion, the appellant has no locus standi at all to complain against the setting up of a rival retail outlet by the fourth respondent, near his place of business, on the ground that would affect his business interest, inasmuch as the damage, if any, suffered thereby was damnum sine injuri-adamage without infringement of legal right. In our opinion, this will only result in promoting competition among the traders, which is good for the consumers. Merely because some of the customers may switch over to the rival retail outlet does not mean that public interest will suffer rather, in our opinion, it will benefit the consumers because, when there is competition, the businessmen are compelled to provide better quality products at reasonable rates."
Therefore outcome is to lend betterment of service to the consumers. By the advertisement of course the writ petitioners are apprehending some reduction in his distribution system, which may be dependant also upon the choice of the consumers if they find some better availability from some others near to them. Therefore, taking the ratio decidendi of the cases cited above, this Court observed that on the mere apprehension the Writ Court should not invoke Article 226 of the Constitution of India until and unless any statutory right or fundamental right are found to have been jeopardized. In the case on hand, the writ petitioners in the face of the documents appended to the writ petition could not so demonstrate. Rather, on the face of the self-same documents, the right and liberty of the Oil Corporations are found to have been kept reserved to appoint more than one district or Gramin LPG Vitrak of course, in accordance with Rule and law prevailing in the field. Though this is the concluding observation in the face of the available materials on record and there may not be any necessity to keep such writ petition pending though Mr. Saha Roy is pressing here to keep such writ petition pending but in view of all above 7 discussions the Writ Court should not be kept burdened with such a case where there is no justification to keep such writ petition pending since no further point is left for decided in this case, and that is why at the motion stage the writ petition stands dismissed.
No order as to costs.
Since the lis in the matter is the same and similar like the writ petition Nos. W.P. 28236(W) of 2017 (Nirmalendu Jana vs. Bharat Petroleum Corporation Ltd. & Ors.) and W.P. 28237(W) of 2017 (Tanima Mohanty (Das) & Anr. Vs. Bharat Petroleum Corporation Ltd. & Ors. ) and the instant writ petition has been disposed of on this day upon hearing both sides though at the motion stage those writ petitions also are disposed of following the same order as passed in W.P. 28232(W) of 2017.
Xerox certified copy of this order, if applied for, be given to the learned Counsels for the parties on usual undertaking.
(Mir Dara Sheko, J.)