Judgment:
V.S. Sirpurkar, J.
1. Appellant/petitioner is a freedom fighter. He challenges the judgment passed by the learned single Judge, dismissing his writ petition. In that writ petition, the appellant had challenged the order passed by the 2nd respondent dated 15-12-1999 whereby, the 2nd respondent had decided that the L. P. G. Distributorship should continue to run by the petitioner along with Smt. Krishnakumari as his partner and that it is only when they approach the Indian Oil Corporation as a partnership, the suspension of their distributorship would be revoked and the supplies would be resumed. There is a short factual background to this order.
2. Petitioner admittedly being a freedom fighter was awarded the L. P. G. Distributorship under 'freedom fighters' quota and he commenced his business at Nagercoil during December, 1995 under the name and style of 'Gopalakrishna Gas Service'. He found it slightly difficult to run his business alone. Therefore, he took his grand-daughter Smt. B. Krishnakumari (3rd respondent herein) as a partner. This was done with the 'consent' of the Indian Oil Corporation. The 1st respondent Corporation accepted the letter to that effect and informed the petitioner that the reorganization proposal was provisionally approved. He was requested to add three paragraphs to his draft partnership deed which, he complied with and wrote to that effect to the 1st respondent Corporation, He also executed a partnership deed on 3-6-1996 on which date, the partnership firm was to commence its working. This was also acknowledged by the 1st respondent by its letter dated 24-6-1996.
3. It seems that troubles started building in the relationship between the petitioner and his grand-daughter, Smt. Krishnakumari, and, therefore, the hitherto congenial relationship between the petitioner and the grand-daughter soured. It seems that on 13-5-1999, Smt. Krishnakumari reported to the Senior Area Manager, Indane Area office, Madurai of the 1st respondent that the petitioner along with his son closed down the godown and locked it. She also pointed out in this very letter hat she had resigned from her job as per the request of her grandfather, the petitioner, and spent lot of money in purchasing the land for the godown. She also reiterated that some others were interfering in the business. She ultimately requested that she should be allowed to open the godown and should be allowed to run the business. It is apparent that the petitioner determined the partnership by his letter dated 3-5-1999 and ultimately the Area Manager suspended the distributorship licence on 14-5-1999. The petitioner made a request to the Area Manager to revoke the suspension and since the said representation was not disposed of filed a writ petition (W. P. No. 14534 of 1999) seeking a Mandamus, directing the 1st respondent to restore the distributorship. By an order dated 1-9-1999, a learned Single Judge of this Court directed the 1st respondent to consider the representation of the petitioner on merits and also taking into consideration the purpose for which the dealership was given. The learned single Judge also mentioned that there was no rule or regulation to get the permission from the 1st respondent to remove the grand-daughter of the petitioner from the partnership firm.
4. Very strangely, the 3rd respondent filed an appeal against this order and the Division Bench by an order dated 26-11-1999 disposed of the writ appeal while confirming the order passed by the learned single Judge. The Division Bench further held that the authority should hear not only the petitioner but the 3rd respondent also before passing a final order. Ultimately, the 1st respondent passed the impugned order dated 16-12-1999 directing that the distributorship business should be run only by the partnership consisting of the petitioner and the 3rd respondent. Time was also granted till 31-3-2000 to the parties to resolve their personal disputes. This order was challenged by the petitioner and the learned single Judge has dismissed the writ petition necessitating the petitioner to file the present appeal.
5. We extensively heard the learned counsel for the petitioner/appellant as also the learned counsel for the 3rd respondent and also the 1st respondent Corporation.
6. This is a 'classic example' how the blood relations get spoiled between two persons when a fiduciary relationship comes into existence between them. It cannot be denied that the petitioner is a recognised freedom fighter and has sacrificed for the country. It is on account of that 'alone' that the L. P. G. Distributorship was awarded in his favour. It is not known as to what prompted him to take up the 3rd respondent as his partner in the business but that fact also appears to be an uncontroverted one. Once this is admitted that the only business of the partnership firm was the distributorship and that the distributorship was initially granted 'solely' in favour of the petitioner, it would go without saying that the petitioner would have the 'final say' in the matter.
7. The learned counsel for the appellant attacked the order of the learned single Judge on various grounds. First it is submitted that even a learned single Judge of this Court has held, as confirmed by the Division Bench, that there were no rules or regulations in existence governing the matter of removal of a partners from a partnership. Indeed, the learned single Judge has held that once the proprietary concern of the petitioner was converted into partnership concern at the request of the petitioner himself, the dealership became the partnership business, perhaps, meaning thereby, that the dealership belong 'solely' to the partnership firm. The learned Judge then proceeds to hold that as per Clause 21 of the Indane Distributorship agreement for any change in the constitution of the partnership firm whether by retirement of a partner or introduction of a new partner or otherwise, a previous written approval of the Corporation would be a must and that the petitioner not having obtained such an approval for deleting the 3rd respondent from the partnership firm, the partnership firm would continue to hold the distributorship. The learned single Judge has also further held that the 1st respondent was justified in avoiding to take sides and has rightly chosen to direct the running of the distributorship business by the partnership alone. The learned Judge then proceeds to observe in paragraph 11 as follows :
'When the distributorship is given to an individual, that means, in this case, the partnership concern and when there is a dispute among the partners, naturally the partnership has to loose the dealership and it is open to the first respondent to appoint a new distributor. Even though the petitioner had obtained the dealership on the basis of the 'Freedom Fighter' quota, by converting the same into a partnership, it has to be seen that such privilege is lost.'
These observations were severely criticised by the learned counsel for the appellant. In our opinion also, the observations cannot be Justified because of the peculiar nature of the grant of distributorship.
8. It cannot be forgotten at all that this distributorship was 'individually' granted to the petitioner obviously for his having sacrificed something for the country. He was a recognised freedom fighter and the distributorship was 'solely depended upon' his being a freedom fighter. All that the petitioner sought in his letter dated 23-11-1995 was introducing his grand-daughter, the 3rd respondent, as a partner in 'his' Indane L. P. G. Distributorship. This was because of his old age. Could then his taking a partner change the colour of the grant in any manner. In our opinion, that could not be the result.
9. Mr. Muthukumaraswamy, learned counsel for the 3rd respondent brought to our notice that the petitioner himself had written a letter to the Indian Oil Corporation that the L.P.G. Distributorship earlier granted in his name could be treated as cancelled and terminated and instead he, along with her grand-daughter, Smt. Krishnakumari, should be recognised as the Distributors. From this, Mr. Muthukumarasamy very vehemently urges that whatever the special rights the petitioner had because of his being a freedom fighter came to an end by the formation of a new partnership firm and the cancellation of the original grant in his favour. We are afraid that cannot be accepted. It cannot be forgotten that this distributorship was from the 'quota meant for the freedom fighters' and, therefore, the character of the grant being a distributorship meant only for the freedom fighters cannot be ignored and forgotten. It was admitted before us by the 1st respondent on a specific query that the grant of distributorship is governed by the rules. In our opinion, any full-fledged cancellation of such distributorship would have required the 1st respondent corportation to 're-advertise' for the grant of distributorship. Even if the petitioner was allowed to take a partner, his character as 'freedom fighter' was not lost and it is only because of that factor that the 1st respondent agreed to allow him to take a partner. Could this partnership be sold to some other persons who were not freedom fighters? That could not have been done. If this is so then, the nature of the grant of the distributorship cannot change its colour merely because the petitioner was allowed to take a partner. At one place, the learned single Judge has observed that even though the petitioner had obtained the dealership under the 'freedom fighters' quota', by converting the same into a partnership, such privilege is lost. We cannot agree with the learned single Judge on this because if this was the position then, it is very easy for misusing the dealership granted to the freedom fighters by a simple transfer of the grant to somebody. Such cannot be the intention for creating a 'quota' for the freedom fighters. We are therefore, of the opinion that the predominant consideration in permitting the petitioner to take the 3rd respondent as a partner was to help him in running the business of L.P.G. Distributorship which he had got 'solely' because he was a freedom fighter. By taking the 3rd respondent as a partner, the petitioner does not lose the character as an ex-freedom fighter. Once this position is obtained, in our opinion, the petitioner would be fully justified in claiming 'exclusive right' to run the business.
10. We hasten to add that we are not at all concerned with the inter se rights between the petitioner and the 3rd respondent which may have arisen because of the partnership agreement. It will be a matter for the civil court to decide. However, the further question is whether the 1st respondent could have insisted that the suspension would be revoked only if the petitioner approaches along with the 3rd respondent as his partner. In our opinion, there is no justification for the 1st respondent for such insistence. We have absolutely nothing to say regarding the action on the part of the 1st respondent to suspend the operations on account of the inter se disputes. However, it cannot be forgotten that the learned single Judge of this Court in W.P. No. 14534 of 1999 had held that there is no rule or regulation to get a permission from the respondent Corportation to remove the grand-daughter (3rd respondent herein) from the partnership and that he had further directed to consider the representation of the petitioner on merits. This consideration was also directed to be done in the light of the 'purpose' for which the dealership was given meaning thereby, the fact that the petitioner was a freedom fighter and the dealership was given 'solely' because of that reason had also to be considered by the 1st respondent. It is significant that in an appeal, which was filed by the 3rd respondent, the Division Bench came to the conclusion that while considering the question of revoking the suspension even the 3rd respondent could be heard. It is perhaps because of the observations in the order of the learned single Judge that in the impugned order the following observations were made by the concerned officer of the 1st respondent. They are as follows :
'Since Shri Gopalakrshna Pillai was ap-pointed as a sole prorietor under the Freedom Fighter category and in order to respect his being a Freedom Fighter he will be allowed to run the L.P.G. Distributorship at Nagercoil. However, since Shri Gopala-krishna Pilial himself had made a request for inducting Smt. Krishnakurnari as a partner in view of his old age and inability to manage the affairs of the said LPG Distributorship on his own which had made Smt. Krishnakumari to resign her Government job, it Is just and proper that he has to run the said LPG Distributorship at Nagercoil along with Smt. Krishnakumari as a partnership concern as the partnership was made on the basis of will and consent of both the parties.
The personal disputes and differences between themselves should be sorted out on their own and mutually to avoid the hardships to the consuming public in general.
Even during the personal hearing extended to both the parties, Shri Gopala-krishna Pillai did not exhibit any interest for consumers concern. On the contrary, he was making the sole demand for removal of Smt. Krishnakumari from the partnership without any basis documentary evidence. This clearly established his mala fides.'
From the above observation, it will be clear that the right of the petitioner to run the business is 'considered' by the 1st respondent and there cannot be any dispute since the original grant in his favour itself was on that basis. Once that is so, it was not for the respondent Corporation to try to settle the equities between the parties and to find an equity in favour of a partner, who had joined the partnership only at the instance of the petitioner. It was not for the respondent Corporation to consider whether the petitioner had resigned her job and that, in our opinion, is an 'irrelevant consideration' So also, there was no question of finding any 'mala fides' on the part of the petitioner to demand the removal of the 3rd respondent and the expression used of 'mala fides' against a freedom fighter is in the bad taste. In fact, the matter was very simple. This distributorship was meant 'Only' for a freedom fighter. The freedom fighter, for reasons known to him, had chosen to induct a partner. That by itself did not create any right in the partner qua the distributorship though the partner may have her rights in the partnership firm. If the partnership was brought to an end and the petitioner decided to drop the 3rd respondent from the partnership, which he had actually done, there was virtually no reason to refuse the relief. We, therefore, do not agree with the learned single Judge and would choose to allow the petition, quashing the order passed by the respondent Corporation only in so far as it pertains to the 'conditional grant'. Such condition of the petitioner being required to join the 3rd respondent as a partner and do the business only with her in partnership would be quashed. Since the Ist respondent has already held that the petitioner would be allowed to run the distributorship at Nagercoil, that part of the order is confirmed.
11. The writ appeal stands allowed. The writ petition also stands allowed in the light of the observations made by us. In the circumstances, however, there shall be no order as to the costs. Connected C.P.M. No. 17559 of 2(300 is closed.