Bombay High Court
Ravi Suryalalji Jaiswal vs Union Of India, Thr. Secretary, ... on 9 October, 2024
Author: M.S. Jawalkar
Bench: Vinay Joshi, M.S. Jawalkar
2024:BHC-NAG:11271-DB
Judgment 1 8wp3139.21+1.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 3139/2021
AND
WRIT PETITION NO. 265/2023
WRIT PETITION NO. 3139/2021
Shri Rahul S/o Late Suryalalji Jaiswal,
Aged about 46 years, Occ. Business,
R/o. "Shree Ganesh", Plot No. 8, South
Ambazari Road, Laxmi Nagar, Nagpur 440022
.... PETITIONER(S)
// VERSUS //
(1) Union of India,
Through Secretary, Ministry of Petroleum
and Natural Gas, Office at Shastri Bhavan,
New Delhi 110001
(2) Indian Oil Corporation Limited,
Nagpur, Circle Officer, Through
Deputy General Manager (Retail Sales),
"Akarshan Busiplex" 26, Central Bazar Road,
Ramdaspeth, Nagpur 440010
(3) Ravi S/o Suryalalji Jaiswal,
Aged about Adult, Occ. Business,
R/o Shri Ganesh, Plot No. 8, South
Ambazari Road, Laxmi Nagar, Nagpur
Amendment carried out as per Court's
order dated 24/04/2023
.... RESPONDENT(S)
..ANSARI../ R.S. Sahare
Judgment 2 8wp3139.21+1.odt
∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞
Mr. J.M. Gandhi, Advocate for the Petitioner
Mr. N.S. Deshpande, DSGI for the Respondent No. 1
Mr. A. Khare, Advocate for the Respondent No. 2
Mr. S.S. Joshi, Advocate for the Respondent No.3
∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞
AND
WRIT PETITION NO. 265/2023
Ravi Suryalalji Jaiswal,
Aged about 53 years, Occ. Business,
R/o. "Shree Ganesh", Plot No. 8,
South Ambazari Road, Laxmi Nagar,
Nagpur
.... PETITIONER(S)
// VERSUS //
(1) Union of India,
Through Secretary,
Ministry of Petroleum and Natural Gas,
Office at Shastri Bhavan, New Delhi 110001
(2) Indian Oil Corporation Ltd,
Through Divisional Manager,
(Retail), Nagpur Divisional Office,
"Akarshan Busiplex", 26, Central
Bazar Road, Ramdaspeth, Nagpur 440010
(3) Rahul Suryalal Jaiswal,
Aged about 46 years, Occ. Business,
R/o. "Shree Ganesh", Plot No. 8,
South Ambazari Road, Laxmi Nagar,
Nagpur
.... RESPONDENT(S)
..ANSARI../ R.S. Sahare
Judgment 3 8wp3139.21+1.odt
∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞
Mr.S.S. Joshi , Advocate for the Petitioner
Mr. N.S. Deshpande, DSGI for the Respondent No. 1
Mr. A. Khare, Advocate for the Respondent No. 2
Mr. J.M. Gandhi, Advocate for the Respondent No.3
∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞∞
CORAM : VINAY JOSHI & SMT. M.S. JAWALKAR, JJ.
CLOSED FOR JUDGMENT ON :- 03/07/2024
JUDGMENT PRONOUNCED ON :- 09/10/2024
JUDGMENT :- (PER: SMT. M.S. JAWALKAR, J.) (1) RULE. Rule made returnable forthwith. Heard finally by consent of learned Counsel for the respective parties. (2) Writ Petition No. 3139/2021 is filed by Rahul Suryalalji Jaiswal whilst Writ Petition No. 265/2023 is filed by Ravi Suryalalji Jaiswal. Both the Petitioners are real brothers. Since Writ Petition No. 3139/2021 is taken as lead Petition, the facts and contentions of the said Writ Petition are referred herein below for deciding the issue involved in both the Writ Petitions.
(3) Father of the Petitioner i.e. Shri Suryalal M. Jaiswal was allotted with a Petroleum Products Retail Outlet Dealership (hereinafter referred to as "RO") by the Respondent No. 1 - Company. Father of ..ANSARI../ R.S. Sahare Judgment 4 8wp3139.21+1.odt the Petitioner used to run the dealership under the name and style as "M/s. Indian Services", which is situated at Gram Panchayat Khairi, Tahsil Kamptee, District Nagpur. Father of the Petitioner died on 19/02/2019. According to the Petitioner, his father executed a registered Will deed and all the rights and ownership of the said petrol pump were bequeathed upon the Petitioner. According to the Petitioner, his father had also submitted an Application in his life time for reconstitution/renewal of the RO Dealership and had appointed the petitioner as Nominee for the said petrol pump at Khairi (Annexure-F). The Petitioner intimated the fact of demise of his father to the Respondents. The Petitioner, vide Representations dated 26/02/2019, 14/03/2019 and 17/09/2019, requested the Respondent No. 2 to permit him to continue to operate the said petrol pump and to continue to run RO till the procedure for reconstitution of dealership is completed.
(4) On the other hand, on 10/03/2019, the Respondent No. 3 had submitted a letter to the Divisional Manager, Nagpur of the Respondent No. 2 intimating that he had succeeded to the subject dealership of his father and a request was also made to permit him to run the subject RO on ad-hoc basis, till reconstitution of the dealership ..ANSARI../ R.S. Sahare Judgment 5 8wp3139.21+1.odt is done. On 14/03/2019, the Respondent No. 2 granted six months' period for submitting proposal for reconstitution/renewal of dealership and till then, permitted the petitioner to continue the RO in the name of the late father of the Petitioner. On 29/03/2019, the Petitioner filed Succession Application vide Succession Case No. 94/2019 and Probate Application vide Probate Case No. 02/2019 before the Civil Court, Nagpur, which said fact, he intimated to the Respondent No. 2. On 19/03/2019, the Respondent No. 3 brother of the petitioner submitted a proposal to the Respondent No. 2 for reconstitution of the subject RO Dealership. On 25/04/2019, a letter was sent by the Respondent No. 2 to the Respondent No. 3 intimating that there are certain shortfalls in the reconstitution proposal, which should be cured. On 17/09/2019, the Respondent No. 2 informed to the Respondent No. 3 that the approval for temporary operations of the RO was given to the Petitioner for a period of six months from the date of approval and the Petitioner was advised to submit a reconstitution proposal, within time frame of six months, with complete documents. On 07/02/2020, the Respondent No. 3 submitted a letter to the Respondent No. 2 for deciding the eligibility issue of the Petitioner. On 04/03/2020, the Respondent No. 3 issued ..ANSARI../ R.S. Sahare Judgment 6 8wp3139.21+1.odt legal notice to the Respondent No. 2. On 14/08/2020, being aggrieved by the inaction of the Respondent No. 2 to decide and rule on the eligibility issue of the Petitioner to hold the subject RO Dealership and grant of temporary dealership to the Respondent No. 3, the Respondent No. 3 had filed a Writ Petition bearing No. 4037/2020 (LD-VC-CW No. 917/2020). This Court disposed of the said Writ Petition on 20/08/2020 by directing the Respondent No. 2 to decide the eligibility of the Petitioner. The Respondent No. 2 has intimated the Respondent No. 3 that the issue of eligibility and reconstitution cannot be decided and is kept pending till the decision in Probate Proceedings filed by the Petitioner. The Respondent No. 2, by letter dated 01/06/2021, intimated the Petitioner that the proposal of the Petitioner for reconstitutional/renewal of dealership is still pending, because of non-submission of Succession Certificate and he instructed to submit the same, otherwise, the Respondent No. 2 would stop sales and supplies of the RO. By letter dated 15/05/2023, the Respondent No. 2 asked the Petitioner to handover the possession of the RO and on 23/05/2023, the Respondent No. 2 took over the possession of the RO. Being aggrieved by the said inaction on the part of the Respondents, the Petitioner has approached this Court praying for ..ANSARI../ R.S. Sahare Judgment 7 8wp3139.21+1.odt directions to the Respondents to reconstitute/renew the Retail Outlet and continue to supply of the petrol and diesel to the petrol pump. On the other hand, the Respondent No. 3 preferred Writ Petition No. 265/2023 praying for directions to the Respondent No. 2 to decide the eligibility of the Petitioner to manage the subject RO and for deciding the proposal of the Respondent No. 3 dated 19/03/2019 for reconstitution of the RO.
(5) Learned Counsel for petitioner advanced his submission as per his pleadings in the petition.
(6) In support of his contentions, Mr. Gandhi, learned Counsel for the Petitioner, relied on the following judgments:-
"(a) Civil Appeal No. 1350/1190 (Mahabir Auto Stores & others vs. Indian Oil Corporation & others);
(b) Allied Motors Limited vs. Bharat Petroleum Corporation Limited reported in (2012) 2 SCC 1;
(c) Hindustan Petroleum Corporation Limited & others vs. Super Highway Services & another reported in (2010) 3 SCC 321;
..ANSARI../ R.S. Sahare Judgment 8 8wp3139.21+1.odt
(d) Hindustan Petroleum Corporation Limited, Nagpur vs. Taj Petroleum, Bhadara reported in [2018(3) Mh.L.J. 784]"
(7) Learned Counsel for the Respondent No. 2 supported the action on the part of Company and contended that petitioner's entitlement is hit by multiple dealership norms.
(8) In support of his contentions, Mr. Joshi, learned Counsel for the Respondent No. 3, relied on the following judgment:-
"(a) Ravi Kumar vs. Union of India, Through the Principal Secretary, Ministry of Petroleum, New Delhi & others reported in 2014 SCC OnLine All 15833"
(9) The Respondent No. 2 - Indian Oil Corporation has filed additional affidavit to the amended Petition. In the said affidavit, it is stated that the said RO is an 'A' site RO which means the land is leased to Respondent No. 2 and the Respondent No. 2 invested huge amount of money for RO development as well as its facilities. The RO is developed by Respondent No. 2 and all infrastructures are made by it. The Petitioner's father was only holding dealership of the said RO ..ANSARI../ R.S. Sahare Judgment 9 8wp3139.21+1.odt and thus was permitted to run the same. His possession over the RO was on behalf of the Respondent No. 2 and not in any independent capacity. Hence, it was communicated to the Petitioner to handover the control of the said RO. It is stated in the said affidavit that the fact of nomination of the Petitioner as nominee of 100% share for reconstitution of the dealership is true. It is stated that the father of the Petitioner had only the right to run the RO which is on the land leased to the Respondent No. 2 and the Petitioner never had the control over the RO. It is stated that the Petitioner was granted temporary approval to run the RO for six months. Thereafter, the Petitioner was asked to handover the possession of the RO. The control of the said RO was handed over to a third party independent operator on 25/05/2023 against which relevant documents viz. payment received from third party dealer for tanker load from the Respondent No. 2, tanker and lube invoice bill to M/s Laksh Petroleum, are filed on record by the Respondent No. 2.
(10) It is stated that the claim of the Petitioner for reconstitution of the dealership is not supported by multiple dealership norms as the Petitioner is already holding a dealership of 'B' site RO. As such, the Respondent No. 2 has followed all the norms, guidelines, legal ..ANSARI../ R.S. Sahare Judgment 10 8wp3139.21+1.odt procedure and hence, the letter dated 15/05/2023 issued by the Respondent No. 2 to the Petitioner to handover the possession of the RO and the action of the Respondent No. 2 to take control over the possession of RO on 23/05/2023 are just and legal. (11) The Respondent No. 3 filed his reply dated 28/04/2023. It is stated that as per Rule/Guideline No. G(4) of the Policy Guidelines for Re-Constitution of Retail Outlet/SKO-LDO Dealership, a family member or a legal heir of a proprietor is entitle to succeed to the dealership/retail outlet. It is stated that the Petitioner is already a dealer of Petroleum Products RO of the Respondent No. 2 which he runs in the name of 'Indo Servo Fuel Station' at Hudkeshwar, Nagpur. It is submitted that the policy of the Government does not allot RO dealership to a person whose family unit already holds a petroleum products RO Dealership. It is stated that despite knowing the fact that the Petitioner is not entitled to run the subject RO, permission was granted to the Petitioner to run the said RO. As such, he prayed for dismissal of the Writ Petition and to decide his proposal dated 19/03/2019 for reconstitution of the RO.
..ANSARI../ R.S. Sahare
Judgment 11 8wp3139.21+1.odt
(12) Heard all learned Counsel for respective parties, perused
documents placed on record. It is admitted fact that father of petitioner Shri Suryalal M. Jaiswal was operating dealership of the Petrol Pump as a Proprietor under the name and style of M/s Indian Services at Mauza Khairi, District Nagpur. Father of petitioner expired on 19/02/2019. By a registered will dated 11/08/2015, father of the petitioner bequeathed the entitlement of the said dealership in favour of petitioner. Immediately, after the death of his father, the petitioner preferred a representation on 26/02/2019 to continue to operate the said Petrol Pump and continue to run the Retail Outlet (RO) till the legal procedure for reconstitution/renewal of dealership in his name is completed. The petitioner made second representation on 14/03/2019 along with copy of the affidavit executed by his late father appointing the petitioner as nominee.
(13) The respondent No.2, by letter dated 14/03/ 2019 granted six months' time for submitting the proposal for reconstitution/renewal of dealership and till then petitioner was permitted to continue to operate the RO in the name of his father. In the meanwhile, petitioner also filed probate application and has also filed Succession Application. Annexure-F is an application by the deceased Suryalal ..ANSARI../ R.S. Sahare Judgment 12 8wp3139.21+1.odt Mahavirprasad Jaiswal, dated 20/12/2018 to IOCL informing that he has nominated his son Rahul Suryalalji Jaiswal for reconstitution and 100% shares, he desire to transfer in petitioner's name. He also mentioned about the execution of affidavit/indemnity bond for appointment of nominee by proprietor of commissioned dealership. This affidavit was executed on 19/12/2018. This fact of execution of nomination was duly brought to the notice of IOCL vide letters dated 14/03/2019 as well as 25/04/2019 and respondent No.2 admitted this fact. In spite of this fact, the respondent vide letter dated 17/09/2019, without considering the fact of nomination, supplies of the RO have been stopped with effect from 14/09/2019 on the ground that approval to continue operation of RO M/s Indian Services Khairi, was temporary for six months due to demise of the proprietor of the RO. He was advised to submit the reconstitution proposal within time frame of six months with complete documents like Succession Certificate/Legal Hairs Certificate/Probated Will/ No Objection Certificate from the other legal heirs, etc. However as the company has not received Succession Certificate/ Legal Heirs Certificate/Probated Will from petitioner side, the company was unable to process the proposal further and in view of the above facts, ..ANSARI../ R.S. Sahare Judgment 13 8wp3139.21+1.odt RO have been stopped with effect from 14/09/2019. The petitioner again made a representation on 17/09/2019 intimating that petitioner applied for succession certificate. The company, again vide letter dated 01/06/2021, directed to submit Succession Certificate and informed that failure to which, the company left with no alternative, but to stop sales and supplies of petitioner's RO. (14) There is no dispute that late Shri Suryalal Jaiswal was sole dealer of IOCL, the RO Indian Services Khairi was commissioned in 1983 as per petitioner. The petitioner brought to the notice of respondent Company vide letter dated 07/06/2021, all the details and also reiterated that though the Probate Certificate is not essentially required and as late Shri Suryalalji Jaiswal in his lifetime itself requested for the reconstitution of the dealership nominating petitioner, nobody else can claim right over the said RO lawfully and requested to reconsider the representation. This letter is duly received by respondent Company. It is also brought to the notice of respondent Company as per law, as Will is executed and registered at Nagpur, it is not at all necessary to obtain probate.
..ANSARI../ R.S. Sahare
Judgment 14 8wp3139.21+1.odt
(15) The respondent Company further without granting
opportunity, by communication dated 15/05/2023, informed to the petitioner as per prevalent policy guidelines in vogue with respect to multiple dealership norms (MDN), petitioner is not eligible for appointment as a dealer of companies 'A' site RO M/s Indian Service, Khairi, as petitioner is already holding a dealership of 'B' site RO running in the name and style of M/s Indian Servo Fuel Point, Nagpur. Thus application of the petitioner is hit by Multiple Dealership Norms (MDN) and was informed that it cannot be considered on account of petitioner's ineligibility and directed the petitioner to handover possession of 'A' site RO M/s Indian Services, Khairi.
(16) Learned Counsel Shri S.S. Joshi for respondent Company relied on Ravi Kumar (supra) in support of his contention that the object and purpose of policy are consistent with the directive principle of the said policy, an effort is made to ensure dispersal of ownership so that to grant equal opportunity to all members of society. The Hon'ble Apex Court in Ravi Kumar (supra) while explaining the expression family unit held as under:
..ANSARI../ R.S. Sahare Judgment 15 8wp3139.21+1.odt "5. The object and purpose of the disqualification is to ensure that there should not be a concentration of retail outlets, dealerships and distributorship of an Oil Company in one family. These dealerships or, as the case may be, retail outlets and distributorships, are allotted by state owned oil companies. Consistent with the Directive Principles the State Policy, an effort is made to ensure dispersal of ownership so that a fair and equal opportunity is granted to all members of society to apply for the allotment of such dealerships, distributorships and retail outlets. There can be no gainsaying the fact that these allotments by the state owned oil companies are highly sought after, providing as they do an important source of income to the allottee. Hence the norm that there should be a dispersal of ownership cannot be faulted since it is based on a criterion which is rational.
How a family should be defined for the purposes of the allotment of a retail outlet, distributorship or dealership, is a matter of policy so long as the criterion which is adopted, is based on logic and reason. The definition of the expression,"family unit", in the present case, postulates that where an applicant is married, his or her family should be read to consist of the spouse and unmarried children. Where, however, a person is not married, the parents and siblings are included as members of the family."
(17) It is now necessary to consider the relevant Clauses of Guidelines for Reconstitution of Retail Outlets SKO-LDO dealership. The some relevant Clauses are extracted as under:
..ANSARI../ R.S. Sahare Judgment 16 8wp3139.21+1.odt "GUIDELINES ON SELECTION OF DEALERS FOR REGULAR & RURAL RETAIL OUTLETS THROUGH DRAW OF LOTS/BIDDING PROCESS INTRODUCTION The salient features of the selection guidelines are:
(i) All applicants meeting the eligibility criteria will qualify for further selection process.
(ii) Transparent on-line process for application and draw of lots/bid opening.
(iii) Different selection process for Corporation Owned Dealer Operated outlets, Dealer Owned Dealer Operated outlets and Corporation Owned outlets under Corpus Fund Scheme.
(iv) Multiple Dealership Norm (MDN) has been relaxed for "B/DC" site ROs.
(v) Existing unviable SKO dealers of OMCs will be eligible to apply.
3. Type Of Retail Outlet Sites The type of sites will be decided by the Oil Companies and the same would be:-
S.N. Type of Site Status of Land & Facilities
i. Locations under The offered land would be taken on lease/
Corpus Fund purchased and fully developed as
Scheme (CFS sites) Corporation owned site.
ii. Other Corporation The offered land would be taken on lease/
Owned Sites ("A"/ purchased and fully developed as
"CC" sites) Corporation owned site.
..ANSARI../ R.S. Sahare
Judgment 17 8wp3139.21+1.odt
iii. Dealer Owned The offered land and the super structure
sites ("DC"/ "B" will be developed by the dealer. Pump,
sites) tank, automation, signages, etc. will be
provided by the Corporation.
Note: Offered land can either be taken from the applicant or the owner of the land directly.
DETAILED GUIDELINES FOR RECONSTITTION OF RETAIL OUTLET/SKO- LDO DEALERSHIPS A. ...
B. RECONSTITUTION AT LETTER OF INTENT (LOI) STAGE
1. Reconstitution of Retail Outlet dealerships will be permitted only once, except in case of death and incapacitation, at LOI stage.
2...
3. ...
9. ...
10. Facility for Nomination : Notwithstanding the above, LOI holder(s) may submit a Nomination Form containing name(s) of person(s) (from among his/her/their legal heir(s)/family member(s), as per the personal Law applicable) that he/she desires to transfer his/her share in the event of death or incapacitation resulting in total and permanent disability which will disable him/her to work or follow any occupation or profession. The nomination form (Annexure-E1) duly sworn before a First Class Magistrate / Executive Magistrate / any other equivalent competent authority in the concerned state may be submitted upon issuance of the LOI. The LOI Holder(s) will also have the option to change his/her nomination at any time during the LOI stage. In case of partnership, partners may submit nomination ..ANSARI../ R.S. Sahare Judgment 18 8wp3139.21+1.odt separately but such nomination will have to be witnessed by other partner(s).
On demise or total incapacitation of the LOI holder(s), fresh LOI will be issued to the person(s) as per the last nomination. In case of more than one nominee, the shareholding of the deceased will be distributed among the nominated persons in the ratio the deceased LOI holder has mentioned in the last nomination or equally in case no share out is mentioned.
The OMC can allow for induction of such nominee(s) as proprietor/partner(s) provided he/she/they meet the eligibility criteria for reconstitution, as applicable without seeking consent from other legal heirs upon demise of the LOI holder(s).
However, if the person(s) nominated express unwillingness to be inducted as LOI holder(s) or they are found ineligible, as per norms applicable for Dealership Selection other than age and education {viz. debarred from dealership under disqualification criteria as per the Dealer Selection Guidelines in vogue}, at that juncture, the LOI can be reconstituted with the other willing legal heir(s) or family member(s) of the deceased LOI holder(s) with the consent of the other legal heir(s).
C. GENERAL CONDITIONS FOR RECONSTITUTION AT LETTER OF INTENT (LOI) STAGE
1. ...
However, in case of death/incapacitation of LOI holder(s), LOI may be transferred to the legal heir(s)/family member(s) as per the nomination submitted by the LOI holder, or in absence of the same with the ..ANSARI../ R.S. Sahare Judgment 19 8wp3139.21+1.odt consent of legal heir(s) of the deceased or incapacitated LOI holder. The legal heir(s)/family member(s), who is/are to be inducted will have to fulfill the following conditions:-
a) Multiple dealership norms and other eligibility criteria, as applicable under Dealer Selection guidelines for the relevant category prevailing at the time of reconstitution, except age and educational qualification.
b) ...
c) Should not come under the purview of disqualification criteria as per the Dealer Selection Guidelines in vogue.
d) ...
e) ...
f) ...
g) The new LOI holder(s) would be required to comply with all the conditions as mentioned in the earlier LOI issued to the deceased/incapacitated proprietor/partner(s).
2. ....
3. Multiple Dealership Norm: Multiple Dealership Norm as per Dealer Selection Guidelines in vogue would be applicable in all cases of reconstitution except in the following cases:
a) Where selection of the concerned dealership/distributorship was made prior to multiple Dealership norms came into existence. This relaxation shall be available only to spouse/children/grandchildren of the dealer.
b) For dealerships which were commissioned after multiple dealership norm came into existence and where two or more dealership/distributorship have been awarded to family member(s) ..ANSARI../ R.S. Sahare Judgment 20 8wp3139.21+1.odt comprising of spouse, father/mother, children/grandchildren (both married and unmarried). Relaxation would be given in cases of reconstitutions arising out of death/incapacitation in favour of other family member already holding a dealership subject to there being no other eligible / willing legal heir(s) / member of family unit (having no dealer/distributorship) for transfer of dealership.
4. ...
5. ...
6. ...
7. In cases where Nominee(s) / Legal Heir(s) not responding: In cases where one or more of the Nominee(s) / Legal heir(s) of deceased proprietor / partner(s) have not given their consent within specified period of 30 days, another time period of 30 days (as reminder) shall be given to the nominee(s)/legal heir(s) for expressing their willingness to join the dealership failing which, it will be treated that they {non responding nominee(s)/legal heir(s) of deceased proprietor/partner(s)} are unwilling to be inducted in the Dealership and the OMC can approve reconstitution of the Dealership with the willing nominee(s)/legal heir(s). However, the surviving / incoming proprietor/partner(s) of the reconstituted Dealership will have to indemnify the OMC against (Annexure-I2) any claims or demands which may be made in future.
8. ...
9. In cases 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 ..ANSARI../ R.S. Sahare Judgment 21 8wp3139.21+1.odt 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 heir(s) and OMC would also independently verify 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 made in future I. PROCESS OF RECONSTITUTION OF COMMISSIONED DEALERSHIPS :
1. ...
2. ...
3. ...
4. In case of death / incapacitation {incapacitation as defined under para G (8)} of proprietor/partner(s), on receipt of information regarding death/such incapacitation, a letter giving opportunity to reconstitute the dealership to nominee(s)/legal heir(s)/family member(s) will be issued, within 10 (ten) days of receipt of such ..ANSARI../ R.S. Sahare Judgment 22 8wp3139.21+1.odt information. Along with this letter, copy of application form for reconstitution of dealership and list / format of other documents and other relevant information to be submitted by the applicant, shall be sent. 30 (thirty) days' time will be given for submitting the application.
In case of formal request for extending the time, the time can be further extended by another 30 days. In case the deceased/incapacitated {incapacitation as defined under para G (8)} Proprietor / Partner(s) had earlier appointed nominee(s), letter/information as mentioned above shall be first sent only to the concerned nominee(s). If the nominee(s) fails to respond within the stipulated period, subsequent letter/information shall be sent to the legal heir(s)/family member(s) of the deceased/incapacitated Proprietor / Partner(s). GUIDELINES ON SELECTION OF DEALERS FOR REGULAR & RURAL RETAIL OUTLETS
10. DISQUALIFICATION A. Individual Applicants : The persons while meeting the above mentioned eligibility criteria if do not satisfy any of the following requirements will be considered as ineligible for applying for the dealership:-
(i) Fulfil Multiple dealership norms : Multiple Dealership norms as mentioned below will be applicable for existing and future "A"/"CC"
site RO dealerships.
Multiple Dealership norms means that the applicant or any other member of 'family unit' should not hold a Corporation owned ..ANSARI../ R.S. Sahare Judgment 23 8wp3139.21+1.odt "A"/"CC" site RO/SKO-LDO dealership or RO/SKO-LDO dealership / LPG distributorship developed under Corpus Fund Scheme and other Special category (DQ/Operation Vijay/Parliament attack beneficiary, etc.), or Letter of intent (LOI) for the same of any Oil Company.
Note:
a) Existing "B"/"DC" site RO/SKO-LDO dealers/LPG distributors {other than those distributorships developed under Corpus Fund Scheme and other Special category (DQ/Operation Vijay/Parliament attack beneficiary, etc)}. And LOI holders including members of his/her 'family unit' may apply for "B"/"DC" site RO dealerships.
b) Existing unviable SKO dealers of OMCs (individual and partnership firms only) can also apply for RO dealerships (for both "A"/"CC" site & "B" /"DC" site ROs) as per Clause 4 (viii)."
(18) After going through these Rules referred above, it is clear that there is facility of nomination by LOI holders to nominate his legal heirs, family members, if he desired to transfer his share in the event of death or incapacitation resulting in total and permanent disability.
The procedure for submission of nomination is given under Clause 10 under the caption "B" in Reconstitution at Letter of Intent(LOI). Late Suriyalalji Jaiswal availed this facility vide letter dated 20/12/2018, which was duly received by the respondent Company on 20/12/2018.
Along with this request letter, the father of the petitioner also
..ANSARI../ R.S. Sahare
Judgment 24 8wp3139.21+1.odt
executed affidavit/Indemnity Bond as per requirement. As per these Guidelines, the OMCs can allow for induction of such nominee provided, he meets the eligibility criteria for reconstitution, as applicable without seeking consent from other legal hairs upon demise of the LOI holders. While adopting process of reconstitution of commissioned dealership, it is made clear that on receipt of information regarding death or incapacitation, a letter giving opportunity to reconstitution of the dealership to nominee/ legal heirs/family members will be issued within 10 days from receipt of such information. However, it is further made clear that in case, the deceased had earlier appointed nominee, letter/information as mentioned above shall be first only to be issued to the concerned nominee. If nominee fails to respond within the stipulated period, consequent letter/information shall be sent to the legal heirs/family members of the deceased. However this procedure is not followed by respondent Company.
(19) Record shows that initially Company was insisting for probate and succession certificate, which is not at all required in case of nomination. It was duly communicated by the petitioner that the proceedings for succession certificate are taken up and there is no ..ANSARI../ R.S. Sahare Judgment 25 8wp3139.21+1.odt provision requiring issuance of probate, if will is executed at Nagpur. Considering this fact, respondent Company ought to have waited for the decision of the Court. In fact, it is not open to the Company to ask for succession certificate, specifically when, there was nomination executed by the deceased- original LOI holder who was operating the said RO since more than thirty years. Suddenly vide communication dated 25/05/2023, respondent Company directed to the petitioner to handover the possession of the Outlet on or before 23/03/2015, on the ground that his nomination hit by multiple dealership Clause. It is alleged by respondent Company that the possession of the subject outlet was taken over on 29/05/2023 and handed over to one Laksha Petroleum Company. This decision is taken without granting any opportunity to the petitioner to defend his claim. As per Clause 3 of Reconstitution of LOI, Multiple Dealership Norms- as per Dealer Selection Guidelines in vogue would be applicable in all cases of reconstitution except in the following cases:
a) Where selection of the concerned dealership/distributorship was made prior to multiple Dealership norms came into existence. This relaxation shall be available only to spouse/children/grandchildren of the dealer.
..ANSARI../ R.S. Sahare Judgment 26 8wp3139.21+1.odt
b) For dealerships which were commissioned after multiple dealership norm came into existence and where two or more dealership/distributorship have been awarded to family member(s) comprising of spouse, father/mother, children/grandchildren (both married and unmarried). Relaxation would be given in cases of reconstitutions arising out of death/incapacitation in favour of other family member already holding a dealership subject to there being no other eligible / willing legal heir(s) / member of family unit (having no dealer/distributorship) for transfer of dealership. (20) In Clause 10 under Caption Disqualification: as per this Clause, Multiple Dealership norms means that the applicant or any other member of 'family unit' should not hold a Corporation owned "A"/"CC" site RO/SKO-LDO dealership or RO/SKO-LDO dealership / LPG distributorship developed under Corpus Fund Scheme and other Special category (DQ/Operation Vijay/Parliament attack beneficiary, etc.), or Letter of intent (LOI) for the same of any Oil Company.
..ANSARI../ R.S. Sahare
Judgment 27 8wp3139.21+1.odt
(21) If these Guidelines on Selection of Dealers for Regular and
Rural Retail Outlets is perused, as per Clause (iv) Multiple Dealership Norm (MDN) has been relaxed for "B/DC" site ROs. (22) In view of this provision, the respondent Company ought to have granted opportunity of hearing to the petitioner to satisfy the Company that these Clauses are not applicable in his case. The said decision for the first time was communicated to the petitioner vide letter dated 15/05/2023 and directed to hand over possession. No opportunity was granted to put up before the Company what would be the loss. The petitioner was thus deprived of his right to run RO of his father though there is a nomination and even registered will deed. He even has obtained succession certificate.
(23) Learned Counsel Shri J.M. Gandhi relied on Mahabir Auto Stores and others (supra), wherein it is held that, "The State act in its executive power under Art. 298 of the Constitution in entering or not entering in contracts with individual parties. Article 14 of the Constitution would be applicable to those exercise of power. Therefore, the action of State organ can be checked under Art.14. Every action of the State executive authority must be subject to rule of law and must be informed by reason. So, whatever be the activity of ..ANSARI../ R.S. Sahare Judgment 28 8wp3139.21+1.odt the public authority, it should meet the test of Art. l4 of the Constitution. If a Governmental action even in the matters of entering or not entering into contracts, fails to satisfy the test of reasonableness, the same would be unreasonable. Rule of reason and rule against arbitrariness and discrimination, rules of fair play and natural justice are part of the rule of law applicable in situation or action by State instrumentality in dealing with citizens. Even though the rights of the citizens are in the nature of contractual rights, the manner, the method and motive of a decision of entering or not entering into a contract, are subject to judicial review on the touchstone of relevance and reasonableness, fair play, natural justice, equality and non-discrimination. It is well settled that there can be "malice in law". Existence of such "malice in law" is part of the critical apparatus of a particular action in administrative law. Indeed " malice in law " is part of the dimension of the rule of relevance and reason as well as the rule of fair play in action".
(24) Learned Counsel Shri J.M. Gandhi relied on Allied Motors Limited (supra) wherein it is held that, "The haste, with which a 30 years' old dealership was terminated even without giving show cause notice and/or giving an opportunity of hearing clearly indicates that the entire exercise was carried out by the respondent corporation on non-existent, irrelevant and on extraneous considerations. There has been a total violation of provisions of law and the principles of natural justice. Samples were collected in complete violation of the procedural laws and in non- adherence of the guidelines of the respondent corporation".
..ANSARI../ R.S. Sahare
Judgment 29 8wp3139.21+1.odt
(25) In support of his contention that in case of Hindustan Petroleum Corporation Limited and others (supra), wherein the Hon'ble Apex Court observed as under:
"31. The cancellation of dealership agreement of a party is a serious business and cannot be taken lightly. In order to justify the action taken to terminate such an agreement, the authority concerned has to act fairly and in complete adherence to the rules/guidelines framed for the said purpose. The non-service of notice to the aggrieved person before the termination of his dealership agreement also offends the well established principle that no person should be condemned unheard. It was the duty of the petitioner to ensure that Respondent 1 was given a hearing or at least serious attempts were made to serve him with notice of the proceedings before terminating his agreement."
(26) In Hindustan Petroleum Corporation Ltd., Nagpur (supra), this Court relied on Allied Motors Ltd. (supra) and held that as no opportunity was granted before action of termination of dealership, the order passed by the Company terminating dealership is illegal. (27) As no proper procedure is followed by the respondent Corporation, while passing order of handing over possession and allotment in favour of Laksha Petrolium Company for even temporary ..ANSARI../ R.S. Sahare Judgment 30 8wp3139.21+1.odt period is illegal. In fact, in case of nomination, the Corporation was required to intimate within 10 days after receipt of information of death of LOI holder, only to the nominee for submitting the document.
(28) The respondent Company has not made clear, when this Multiple Dealership Norms came into effect. As per their norms, the Multiple Dealership Norms would be applicable in all cases of reconstitution, except where selection of the concerned dealership was made prior to multiple dealership norms came into existence. This relaxation shall be available only to spouse children, grandchildren of the dealers.
(29) In our considered opinion, the action on the part of respondents is not at all in adherence with the guidelines issued by respondents. They are also in total violation of principle of natural justice. In view of above guidelines, it also needs to be considered whether this Multiple Dealership Norms are in existence when an original LOI was executed in favour of father of the petitioner. Secondly, for disqualifying under Multiple Dealership Norms, it is applicable only when any dealer holds the dealership of "A/CC" site ..ANSARI../ R.S. Sahare Judgment 31 8wp3139.21+1.odt and it is not applicable when the applicant is holding dealership of "B" site. Now petitioner is in possession of succession certificate. Even if it is case of the respondent that petitioner failed to produce succession certificate, there is provision of filling affidavit. Ultimately Court proceedings are not within the control of petitioner once he applied.
(30) So far as claim in Writ Petition No.265/2023 is concerned, the petitioner has no right to ask for dealership, in view of the fact that father of the petitioner already availed the facility of nomination in favour of his son Rahul Jaiswal. Secondly, the succession certificate of 100% share in respect of dealership of M/s Indian Services is in favour of Rahul Jaiswal. Even dealership of subject Outlet is bequeathed by registered will deed by deceased Suryalalji Jaiswal in favour of Rahul Jaiswal. As such, the petitioner in Writ Petition No.265/2023 has not made out any right in his favour as on today. Unless the eligibility issue is decided by respondent No.2 Company by following due procedure and by granting fair opportunity to the petitioner to substantiate his claim, there is no question of rights accruing in favour of respondent No.3/petitioner in Writ Petition No.265/2023. As such, the said petition is liable to be dismissed. For the reasons stated above, ..ANSARI../ R.S. Sahare Judgment 32 8wp3139.21+1.odt the order passed by the respondent dated 15/05/2023 is unsustainable being arbitrary and contrary to the norms and procedure hence liable to be set aside. According, we proceed to pass the following order:
ORDER
(i) Writ Petition No.3139/2021 is partly allowed.
(ii) The impugned communication dated 15/05/2023 issued by respondent No.2 is hereby quashed and set aside.
(iii) Respondent No.2 is hereby directed to consider afresh applications made by the petitioner in Writ Petition No.3139/2021 dated 14/03/2019, 25/04/2019 and 20/09/2019 by granting due opportunity to the petitioner.
(iv) The respondents are directed to take decision within a period of two months from the receipt of the copy of this judgment after giving opportunity of hearing to all concerned.
(v) Writ Petition No.265/2023 is hereby dismissed.
Both the Writ Petitions are disposed of as above. No Costs.
(SMT. M.S. JAWALKAR, J.) (VINAY JOSHI, J.) Signed by: Mrs. Ranjana Sahare ..ANSARI../ R.S. Sahare Designation: PA To Honourable Judge Date: 09/10/2024 18:29:26