Jammu & Kashmir High Court
Suman Lata And Others vs . Union Of India And Others on 25 April, 2019
Equivalent citations: AIR 2019 JAMMU AND KASHMIR 117, AIRONLINE 2019 J AND K 248
Author: Sindhu Sharma
Bench: Sindhu Sharma
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
OWP No.1268/2011
IA Nos. 01/2017, 1762/2011 & 01/2016
Date of decision:25.04.2019
Suman Lata and others vs. Union of India and others
Coram:
Hon'ble Mrs. Justice Sindhu Sharma, Judge
Appearance:
For Petitioner (s) : Mr. R. K. Jain, Advocate
For Respondent (s) : Mr. R. P. Sharma, Advocate
i) Whether to be reported in
Digest/Journal : Yes/No.
ii) Whether approved for reporting
in Press/Media : Yes/No.
01. Petitioner has filed the above titled writ petition seeking direction for quashing the advertisement Notice published on 10th September, 2011 for allotment of LPG Gas distributorship pertaining to Tehsil and District Reasi till the rights of the parties are finally determined in Arbitration Petition titled 'M/s Kalka Gas Service Vs. M/s Hindustan Petroleum Corp Ltd & anr.' and the petitioner seeks direction commanding the respondents not to initiate any process of allotment of LPG distributorship, against the termination of License of the petitioner for Tehsil & District Reasi.
02. Brief facts arising in this petition are that the petitioner was granted a Domestic and Commercial HP Gas Dealership being sole proprietor of his concerned M/s Kalka Gas Service vide an Agreement dated 29th April, 1987 for a period of ten years. Subsequently, another Agreement was entered/executed inter se the parties in the year 1997 and thereafter in the year 2007. During the currency of the agreement dated 24th December, 2007, a show cause notice dated 7th February, OWP 1268 of 2011 Page 1 of 4 2008 was issued to the petitioner regarding change in the constitution of the dealership without any prior consent from the Corporation in violation of the dealership agreement, this dealership was terminated on 29th June, 2008. Since in terms of Clause-39 of the Agreement, a dispute in terms of the termination had arisen between the parties and one Vinod Netay, Deputy General Manager, LPG (NWZ) was nominated as a Sole Arbitrator to adjudicate the dispute between the parties. The said Arbitrator entered upon the reference and passed an award on 01st July, 2009 holding the termination of the dealership as legally valid and also directing the claimant had to pay Rs. 6,74,400/- towards the cost of equipments within one month from the date of the award to the respondent, failing the respondent would recover the same at the rate of 8% interest per annum.
03. An application for setting aside the award was made under Section 34 of the Arbitration and Conciliation Act which was decided by the learned Principal District Judge, Jammu vide his order dated 17th November, 2011 who dismissed the application of the petitioner. An appeal has been filed under Section 37 of the Arbitration and Conciliation Act, 1996 i.e., CIMA No.569/2011 which is pending adjudication in this Court.
04. Grievance of the petitioner is that on 10th September, 2011, the respondents have invited application for allotment of dealership of LPG (GAS) against the termination of the license of the petitioner when the matter was still pending before the Court of learned District Judge with regard to termination of the dealership. Thus, the issuance of the OWP 1268 of 2011 Page 2 of 4 Advertisement Notice is outcome of the arbitrary exercise of the powers which according to him would defeat his rights in respect of the dealership of the Domestic and Commercial Gas while the petition under section 34 of Arbitration and Conciliation Act was still pending adjudication, as such, the same is required to be set aside.
05. Respondents in their objections and stated that the termination of the Dealership Agreement was upheld by the Arbitrator vide his award dated 1st July, 2009 and therefore, they have rightly issued the Advertisement Notice seeking application for appointment of Distributors of Commercial Gas (LPG) in Reasi in accordance with the policy direction of Government of India, Ministry of Petroleum and Natural Gas. It is also submitted that once the agreement has been terminated, the petitioner has no right to seek stay of the Advertisement Notice with regard to fresh allotment of dealership for Reasi and the only course available for him is to seek compensation in case he can substantiate his claim that he has been unjustifiably as dealership.
06. Heard learned counsel for the parties. The petitioner's dealership of the petroleum for distribution of LPG was terminated by the respondent on 24.06.2008 on the ground that he had violated the dealership's agreement. After his termination, the petitioner invoked the Arbitration Clause of the Dealership Agreement for adjudication of these disputes between the parties through Arbitration. On 30th August, 2008, Arbitrator was appointed by the Competent Authority and an award was passed by the Arbitrator on 01.07.2009 which upheld the termination of the agreement, thus, the respondents have rightly issued OWP 1268 of 2011 Page 3 of 4 notice seeking application for appointment of LPG distributors in Reasi. The application under section 34 for setting aside the award was also dismissed by the learned District Judge on 17.11.2011 and an appeal against the same is pending. Since the petitioner's agreement stands terminated, he cannot stop the entire process of allotment of LPG distributorship. The Hon'ble Apex Court in Indian Oil Corporation Limited v Amritsar Gas Station, 1991(1) SCC 533 has held even if the termination of dealership was invalid, then also restoration cannot be granted and petitioner would only be entitled to claim compensation. Petitioner's termination has been upheld by the Arbitrator, and his application under section 34 has been dismissed, therefore, the petitioners cannot stall the process of appointing LPG distributors in Reasi which has remained pending for more than seven years.
07. For the aforementioned reasons, there is no merit in this petition, which is, accordingly, dismissed. Consequently, application also stands dismissed.
(Sindhu Sharma) Judge Jammu:
25.04.2019 Ram Murti RAM MURTI 2019.04.30 14:14 I attest to the accuracy and integrity of this document OWP 1268 of 2011 Page 4 of 4