Ashim Kumar Banerjee, J.
1. Indian Oil Corporation Limited the appellant abovenamed is one of the oil companies empowered to deal with kerosene oil. Under the kerosene oil Control Order the oil companies are to appoint agents for distribution of kerosene oil on their behalf. In turn the agents are to distribute kerosene to the dealers and in turn dealers to the various retailers. The dealers and/or retailers are appointed by the State whereas agents are appointed by the oil companies.
2. The respondent is a partnership firm carrying on business dealing with kerosene oil in the district of 24-Parganas (South) as well as Kolkata. The said firm was initially a proprietorship concern. On September 26, 1966 the said proprietorship concern M/s. Jharna Sarkar was appointed agent by the appellant for dealing with kerosene oil on behalf of the said oil company. In terms of the said agreement appearing at pages 115 to 117 of the Paper Book the said proprietorship concern was granted agency in respect of 'Dhakshin Para, Barisha in the town of Kolkata'. The proprietorship concern was subsequently converted into a partnership firm and fresh agreement was entered into by the parties on February 28, 1994 appearing at pages 122-129 wherein the area mentioned was as follows :
'Behala/Barisha P. S. Behala/P. S. Thakurpukur in the district of 24-Parganas (South) West Bengal'.
3. Subsequently in the year 2000 four separate agreements were entered into by and between the parties on February 14, 2000 appearing at pages 138 to 145. In one of such agreements the area was described as Behala in the district of 24-Parganas (South). The other three agreements related to other three spots. However, the Barisha was not mentioned in any of the four agreements.
4. The respondent immediately moved this Court as and by way of writ petition being AST No. 610 of 2000 inter alia complaining that the four agreements were entered into by the oil company for Behala, Thakurpukur, Bishnupur and Mahestala. However, Barisha was not separately mentioned in any of the said four dealership agreements. Hence, the oil company should be directed to include Barisha in the agreement or execute fresh agreement there--for. The said writ petition was disposed of by Bhaskar Bhattacharjee, J. by his order dated March 8, 2000 wherein the writ petitioner being the respondent herein did not press their writ petition on the basis of the submission made on behalf of the oil company to the effect that Barisha was part of Behala and as such the Barisha was not mentioned in the fresh dealership agreement. An inter office memo was placed before His Lordship appearing at page 146 of the Paper Book which provided that since Barisha was part of Behala it was not separately mentioned. It was however mentioned in the said inter office memo that the supply to Barisha had not been discontinued.
5. The oil companies, however, continued supplies to the writ petitioners at 5 points by treating Barisha as an independent point irrespective of the fact that no separate agreement was entered into by and between the parties on that score. This fact, however, revealed subsequently on a vigilance enquiry and the oil company stopped supply at Barisha. Hence, this writ petition.
6. In the year 2001 the respondent approached this Court by way of a fresh writ proceeding on a different context. The said writ petition was heard by me sitting singly. In the said writ petition being W.P. No. 60 of 2002, the writ petitioner alleged that the oil companies were not distributing oil pro rata amongst agents and was making discriminating treatment to the agents. Identical writ petitions were also filed by other agents. I heard all the writ petitions analogously. I also gave notice to the other agents working in the concerned district. Upon hearing all concerned parties I directed the Director, Consumer Goods to convene a meeting of all the concerned parties to evolve an uniform formula of distribution of kerosene in the concerned district. My order in the said writ petition dated March 21, 2002 appearing at pages 389-391 of the Paper Book was given effect to and the parties accepted the said order. A meeting was convened by the Director of Consumer Goods. Accordingly the meeting was conducted by the Director, Consumer Goods on May 2, 2002 wherein the present writ petitioner appeared. In the said meeting it was unanimously decided as follows :
'1. All attempts will be made to tag dealers with the agents as per existing quota fixed by the oil company. However, the excess R/C of dealers tagged with the agents, who were already having the allocation of 250 KL per month would be deliked from the existing agents and tagged with other agents whose allocation are below 250 KL. The quota of the agents with whom the dealers are tagged will thus be enhanced but in any case the quota of the said agent will not except 250 KL.
2. The cases of the agents having monthly quota of more than 250 KL. per month should be reviewed by the oil companies in consultation with Government so that in no case the ceiling of 250 KL. is violated.
3. In the interest of viability, no agent should be given a quota of less than 75 KL. per month. Appropriate adjustment in respect of tagging of dealers/R.C. should be made. Keeping this principle in view,
4. District Controller, 24-Parganas (South) should ensure permanent tagging of ration cards with the agents under intimation to the D.C.G. and the concerned oil companies.
5. In the exigency of circumstances the State Government shall have the power to issue instructions for enhancement or reduction of monthly quota of any agent subject to a maximum allocation of 250 KL. on temporary basis.
6. In case of changes in the number of ration cards of any particular agent, the oil companies shall increase or decrease the quota as per directions to be issued by the State Government. This includes the situation which arises due to suspension/cancellation of an agent. In such cases the dealers of the suspended/cancelled agent will be temporarily tagged with nearby agents in the interest of public distribution systems. Such tagging shall be informed by the Director of Consumer Goods to the concerned oil companies and the concerned oil Companies shall ensure supply to the said agents as per allocation made by the State Government.
7. Districtwise monthly allocation should be made within 10th of the month. All the oil companies should also submit monthly allegations statements within seven days from the date of receipt of districtwise allocation order to the D.C.O. as well as to the concerned District Controllers. Monthly statement showing the upliftment of kerosene oil by the agent should be submitted to the D.C.G. within 10thof the next month.
8. The district of Kolkata should be treated as a single district unit and the quota of kerosene oil of Kolkata should be distributed amongst the agents of Kolkata only. The earlier conception of 'added area' should no longer exist.
9. The State Government strongly recommends that the oil company should immediately take steps for appointment of adequate numbers of agents in all areas, particularly in respect of the areas recently added to the Kolkata Municipal areas, so that the principle of 75 KL. to 250 KL. monthly allocation to agents be maintained as far as practicable'.
7. After the said meeting was held and the resolution being taken the oil company started reviewing the process to remove the discrimination with regard to the distribution of kerosene oil by maintaining the bench mark of 250 KL. per agent. While the matter was being reviewed the vigilance department of the oil company found that the writ petitioner being the respondent herein was being allotted quota for 5 outlets including Barisha whereas there were 4 agreements for 4 outlets. It was found that although there was no agreement with regard to Barisha the supply was being continued. Similarly there were discrepancies in respect of supplies made to other agents. Steps were also taken to rectify those mistakes. The oil company by way of rectification of their mistake withdrew the quota allotted to the respondent in respect of Barisha unit and redistributed the same pro rata amongst other existing agents by following the bench mark of 250 KL. The respondent was also benefited by such process and their quota in respect of other four units were also re-adjusted by following bench mark of 250 KL.
8. Challenging the cancellation of the quota in respect of Barisha the present writ petition was filed by the respondent No. 1. In the writ petition it was contended that the oil company was supplying kerosene oil at Barisha unit since 1960 and withdrawal of such allotment that too without giving any opportunity of being heard was illegal and was violative of the principles of natural justice. Reliance was placed by the respondent No. 1 in this regard oh the decision of the Apex Court in the case of Mahabir Auto Stores and Ors. v. Indian Oil Corporation and Ors., reported : [1990]1SCR818 . The writ petition was heard and disposed of by the learned Single Judge by her order dated April 1, 2003. The learned Single Judge while considering the decision in the case of Mahabir Auto Stores (supra) came to conclusion that the stoppage of supply at Barisha point without notice to the respondent No. 1 could not be sustained. The learned Single Judge, however, clarified that the said judgment and order would not prevent the respondent from adopting or implementing any policy decision in accordance with law for equitable supply upon reasonable notice to the person adversely effected thereby. Hence, this appeal.
9. Mr. Anindya Mitra, learned Counsel appearing in support of the appeal, contended that in terms of the policy decision which had been ratified in the minutes of the meeting held on April 1, 2003 the oil company was to make equitable distribution through their agents. While doing so they found that there was no agency agreement in respect of Barisha and as such allotment of kerosene oil for 238 KL. at Barisha point was a mistake and such mistake was rectified by the oil company by making equitable distribution amongst various agents in the said district. Mr. Mitra, further contended that Barisha was a part of Behala and as such for Behala allotment could not be made by violating the bench mark of 250 KL. and there could not be any independent quota for Barisha in addition to the quota realloted for Behala.
10. Mr. Mitra lastly contended that since this mistake was found out on a vigilance enquiry made at the time of review of the respective allotments made by the oil company in terms of the decision taken in the meeting held on April 1, 2002 the oil company was entitled to rectify such mistake and the principles laid down in the case of Mahabir Auto Services did not have any application in the instant case.
11. Mr. Milan Banerjee, learned Counsel appearing for the respondent No. 1, contended that since 1966 Barisha was considered to be a distribution point and all throughout allotments were made for Barisha. He further contended that in 2000 when Barisha was not mentioned in the agency agreements the respondent No. 1 moved this Court and on the basis of the inter-office memo appearing at page 146A of the Paper Book the respondent No. 1 had withdrawn the writ petition.
12. Relying on the decision of the Apex Court in the case of Mahabir Auto (supra) Mr. Banerjee contended that the supply could not be discontinued without giving opportunity of being heard.
13. He also relied on the following Apex Court decisions :
Madan Lal 'Dhartipakar' v. Neelam Sanjeeva Reddy and Ors., reported in : [1978]3SCR465 .
: [1975]2SCR42 (Godhra Electricity Co. Ltd. and Anr. v. State of Gujarat and Anr.)
: 1991ECR11(SC) (Indian Metals & Erro Alloys Ltd. Cuttack v. Collector of Central Excise, Bhubaneshwar)
: AIR1992SC564 (N. Suresh Nathan and Anr. v. Union of India and Ors.)
1989 Sup-I Supreme Court Cases, page 144 (Collector of Central Excise, Guntur v. Andhra Sugar Ltd. Venkataraypurama)
14. The learned Advocate General appearing for the State contended that the State was interested in uniform distribution of kerosene oil so that the ration card holders got their regular supply through the public distribution system. The learned Advocate General also contended that in Barisha the respondent No. 1 was the only agent and because of stoppage of supply at Barisha point the public at large residing at the said area were affected. The learned Advocate General lastly contended that the State was not interested as to who was appointed agent at Barisha. In case the oil company decides to discontinue supply to the respondent No. 1 at Barisha they should make alternative arrangement so that the residents of the said area do not suffer.
15. Let me now deal with cases cited by the parties :
(i) : [1975]2SCR42 (Godhra Electricity Co. Ltd. and Anr. v. State of Gujarat and Anr.): Here the licence was granted for 50 years. The Apex Court held that the fact that the licence was subsequently amended was not material, for the words of the licence being clear, extrinsic evidence to change their meaning was not admissible.
In the instance case the licence was initially granted to the proprietorship firm where Barisha was mentioned. However, when the licence was granted to partnership firm in 1994 and thereafter in 2000 Barisha was not mentioned. Hence we are to be guided by the terms of the 2000 agreement which did not provide for Barisha. Hence, this decision in our view can not help the respondent.
(ii) : [1978]3SCR465 (Madan Lal 'Dhartipakar' v. Neelam Sanjeeva Reddy and Ors.): Paragraphs 24 and 25 of this judgment were relied on by Mr. Banerjee. In the said paragraph the Apex Court held that when a writ of mandamus was issued by the High Court the same can not be ignored or disregarded irrespective of the fact whether the Life Insurance Corporation (Modification of Settlement) Act was constitutionally valid or not, I do not find any application of this decision in the instant case.
(iii)1989, Supplementary-I, Supreme Court Cases, page 144 (Collector of Central Excise, Guntur v. Andhra Sugar Ltd. Venkataraypurama): Here the Apex Court came to conclusion that Court while construing a statute would give much weight to the interpretation put upon it at the time of its enactment and since by those whose duty has been to construe, execute and apply the same enactment.
(iv) : 1991ECR11(SC) (Indian Metals & Erro Alloys Ltd. Cuttack vs. Collector of Central Excise, Bhubaneshwar): Paragraph 15 of this judgment was relied on by Mr. Banerjee. In this paragraph the Apex Court held, 'a contemporaneous exposition by the administrative authorities is a very useful and relevant guide to the interpretation of the expression used in a statutory instrument, we think the assessee's contention that this products fall within the purview of item 26AA should be upheld'.
In the instant case in the earlier agreements Barisha was mentioned and supply was affected at Barisha when in 2000 agreement Barisha was not mentioned even then supplies were made at Barisha. Such supply was contrary to the terms of the agreement and as such the oil company was entitled to rectify their mistake and this decision can not help the respondent No. 1 in the facts and circumstances of this case.
(v) : AIR1992SC564 (N. Suresh Nathan and Anr. v. Union of India and Ors.): Paragraph 4 of this judgment was relied by Mr. Banerjee. In this decision the Apex Court recognized the age old practice followed in the case of promotion. The Apex Court came to conclusion that if the past practice was based on one of the possible constructions of the rules the other construction upsetting the age old practice was not permissible.
In the instant case in view of unambiguous terms of the agreement of 2000 there can not be two opinion that the supply so long made after execution of the 2000 agreement was completely contrary to the agreement and this decision in our view does not fit in the facts and circumstances of the present case.
MAHABIR AUTO (SUPRA):
16. Now comes the case of Mahabir Auto (supra). This decision was heavily relied on by the respondent No. 1 before the learned Single Judge as would appear from the judgment as well as before us. Before considering the ratio decided in the said case the facts involved therein are relevant to be discussed. Paragraph 7 of this judgment dealt with the procedure for sale of lubricants. The said paragraph is quoted below :
'7. It appears that the procedure adopted for the supply of lube oil products was that the party requiring supply would write a letter to the company whereupon the Divisional Office through the Lube Section would process the same and would intimate as to how much supply was possible. Thereupon the requisition slip would be processed and a delivery challan/order would be made out. The conditions of the Product Indent-cum-Delivery Order, inter alia, categorically provided that 'I.O.C. also reserves the right to cancel your order without any intimation or assigning any reason'. It further provided that 'I.O.C. took no responsibility of despatches/releases of stocks shall be on the basis of availability of stocks'. There was no other contract in the facts and circumstances of the case, it was urged. The letters making the requisitions, the Product Indent-cum-Delivery Orders, the delivery challans as also the payment are the only documents constituting the dealing or transactions between the parties. The company had categorically reserved its right to refuse and/or cancel the orders without any intimation or assigning any reason and it was perfectly within its right to discontinue the said arrangement. Several obligations have been provided under the arrangement including, inter alia, price controls, minimum off-take of stocks, safeguards against contamination, right to the inspection and/or unrestricted access, right of account etc. It was asserted that even under the contractual transaction as entered into with the Associated Trading Company, the respondent company had right of termination forthwith for any reason whatsoever and the company's right to terminate was not fettered by the doctrine of reasonableness or doctrine of natural justice and rights of hearing etc. as sought to be put forward on behalf of the appellants. It is, therefore, suggested that what was not even contractually recognized should not be artificially given higher status, in the facts and circumstances of the case, as the appellants were seeking to invoke the right flowing from an utter irregularity specially when the company had been made publically accountable especially when the company does not act unless through a written contract as also when only authorised'.
17. From the analysis of the facts as discussed by the Apex Court and reproduced hereinbefore it would appear that the oil companies were selling the lubricants to persons who would apply for the same. There was no set procedure for sale of those lubricants through any authorized dealer or agent. Moreover the oil company had categorically reserved its right to revise or cancel any order for supply without any intimation or assigning any reason. In these facts the Apex Court came to conclusion that when the said procedure was being followed by the oil companies sudden stoppage of sale without any reasonableness and that too without giving any notice can not be held to be justified.
18. In the instant supply was being affected by virtue of the agreement entered into by and between the parties. Under the agreement the respondent No. 1 was not entitled to supply at Barisha.
19. Let us now consider the issue of supplies made at Barisha since 1960. Those supplies were made in terms of the agreement entered into by and between the parties from time to time. When in 2000 agreements were entered into Barisha was excluded. Hence, after execution of 2000 agreement the respondent No. 1 was not entitled to have any supply at Barisha. Hence, the contention that the supplies were being made for decades is not at all tenable.
20. When the 2000 agreement was entered into the respondent No. 1 should have protested and should have insisted on inclusion of Barisha. They had not done so. After the agreement was executed they approached this Court and thereafter withdrew the writ petition relying upon the inter office memo which had stated that supply at Barisha was not stopped. Since the agreement by which the parties were bound did not stipulate Barisha such inter office memo de hors in the agreement in my view can not give any right to the respondent No. 1 in addition to the terms of the agreement.
21. Now comes the question of opportunity of being heard. By my order dated March 21, 2002 I disposed of the writ petition of the respondent No. 1 by directing the Director of Consumer Goods to convene a meeting of all the concerned parties. Accordingly, a meeting was convened. The respondent No. 1 was present at the meeting and after mutual discussion it was decided that the upper limit of supply would be 250 KL. per agent and at the same time pro rata distribution should be made. At that point of time the respondent No. 1 did not raise the issue of Barisha as they were satisfied with the supplies being made by the oil company. No party challenged the decision taken at the said meeting held on May 2, 2002. Hence, parties to the said meeting were bound to adhere to the resolutions taken therein. In Clause 1 of the said minutes it was categorically resolved that in any case the quota of agent would not exceed 250 KL. The respondent No. 1 was an authorized agent for Behala. They were to get supply under the agreement and the agreement only. Since Barisha was a part of Behala whatever supplies are made at Barisha would flow from the quota allotted to the respondent No. 1 in respect of Behala so supplies made at Behala and Barisha could not exceed in aggregate 250 KL. The oil company while reviewing their allotments in terms of the said resolution taken at a joint meeting found out their mistake and rectified the said mistake to implement the true spirit of the resolution taken in the said meeting held on May 2, 2002 wherein the respondent No. 1 was a party. Hence, in my view, the principles laid down in the case of Mahabir Auto (supra) would not in any way help the respondent No. 1 in the peculiar facts and circumstances of this case as discussed hereinbefore. I am constrained to say that the learned Judge did not approach the problem in right direction while applying the ratio laid down in the case Mahabir Auto (supra).
22. The matter may be viewed from another angle. If a person enjoys a benefit de hors his right conferred by statute or by agreement he cannot claim continuation of the same and the other party is entitled to rectify such mistake and/or wrong. In the instant case since the oil company on an enquiry found that the supplies at Barisha was being made independently of the quota allotted to the respondent No. 1 in respect of Behala de hors the agreement entered into by and between the parties they were entitled to rectify their own mistake and/ or wrong to prevent further wrong. If we allow the respondent No. 1 to enjoy independent quota for Barisha that would amount to deprival of the other agents who were getting less than 250 KL, In other words by rectification of such mistake the oil company did not benefit themselves, they have redistributed the said allotment amongst other agents to maintain the upper limit of 250 KL. Incidentally the respondent No. 1 was also benefited by that when their quota in respect of other outlet got increased by virtue of such cancellation.
23. We do not find any mala fide on the part of the oil company while rectifying such mistake. We fail to understand how this mistake could crop up and how the respondent No. 1 enjoyed additional quota de hors the agreement since 2000. We express our strong displeasure in the working of the oil company in this regard.
24. In the result the appeal succeeds and is allowed. The judgment and order of the learned Single Judge dated April 1, 2003 is set aside. Writ petition of the respondent No. 1 being W.P. No. 2086 of 2002 is dismissed.
25. There would be no order as to costs.
26. Urgent xerox certified copy would be given to the parties, if applied for.
Ashok Kumar Mathur, CJ.
27. I agree.
28. The stay of the judgment/order, as prayed for by the learned Counsel for the respondents, is considered and rejected.