Judgment:
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. LPAOW No. 82 OF 201.M/S Shanta Sharma Petitioners Union of India and ors Respondent !Mr. R. S. Thakur, Sr. Advocate with Mr. Pankaj Jamwal, Advocate ^Mr. M. K. Bhardwaj, Sr. Advocate with Mr. Ajay Abrol, Advocate, Mr. R. Koul, Advocate. Honble Mr. Justice M. M. Kumar, Chief Justice Honble Mr. Justice Mohammad Yaqoob Mir, Judge Date:
18. 12.2012 :
: M. M. Kumar, CJ 1.There is a spurt of litigation in respect of Petroleum and Petroleum products which apparently shows that it is a lucrative business. The instant appeal under Clause 12 of the Letters Patent has been preferred by M/S Shanta Sharma and sons which is a dealer of Indian Oil Corporation. The primary grievance echoed in the writ petition was that its area of operation has been arbitrarily and unfairly curtailed and restricted. A declaration was sought that the petitioners firm was entitled to supply of Superior Kerosene Oil to the areas of Rajouri, Poonch Districts, Akhnoor Tehsil of Jammu District as also Jammu City. They have invoked the provisions of policy dated 05.08.1986 floated by respondent-Indian Oil Corporation (for brevity to be referred as the Corporation)”
2. It would be appropriate to mention at the out set that initially the dealership was given vide order dated 21.12.1974 to one Ram Lubhaya, who was nominee of Director General of Resettlement because of his Army background. His area of operation in the communication dated 21.12.1974 was shown as Rajouri with Poonch, Akhnoor, Kalakote, Sunderbani, Chamb, Mendhar, Nowshera, Mandi and Surankote. There was an agreement between Ram Lubhaya and the Corporation. After his death Mrs. Shanta Sharma widow of Ram Lubhaya stepped in his shoes. Obviously the agreement between Ram Lubhaya and the Corporation came to an end on the death of Ram Lubhaya. Accordingly, a new bipartite agreement was executed between the widow Mrs. Shanta Sharma and the Corporation on 28.06.1983 where the area of operation was shown as Rajouri District, Poonch District and Municipal limits of Jammu City. It has come on record that Mrs. Shanta Sharma expired on 10.02.1992. On facts there is no dispute that Mrs. Shanta Sharma was the sole proprietor and a new agreement has been executed between Ashesh Sharma and the Corporation on 04.11.2011, during the pendancy of the writ petition.
3. Before the learned Single Judge the parties reached a consensus that Arbitration clause in the dealership agreement, which is reflected in para 28 of that agreement, was not to be 3 invoked because the writ petition was formally admitted to hearing and was pending since 2006. On merits the learned Single Judge rejected the claim made by the appellant-writ petitioner that the Corporation lacked power and authority to curtail or restrict or enlarge the area of its operation or the volume of superior kerosene oil of such dealer. The reason for rejecting the claim was that on account of increase of population, life style, connectivity, consumer preference and other factors, consumption of essential commodity has also increased many fold which could not be static. As the population of Rajouri, Poonch and Akhnoor Tehsil of Jammu City had increased many fold since the year 1974 it was not considered possible for one dealer to cover such a vast area for supply of Superior Kerosene Oil and Low Diesel Oil. Moreover the Corporation had reserved to itself the right to curtail the area of operation and to appoint one or more dealers for the said area under the dealership agreement executed with Mrs. Shanta Sharma wd/o Late Ram Lubhaya. Para 1-c of the dealership agreement clearly stipulates the aforesaid position. The learned Single Judge also held that even otherwise the dealership was not inheritable as such and Shri Ashesh Sharma, her son, was required to work out some new arrangement with the Corporation to ensure that he is acknowledged as a dealer in his own right. Eventually a 4 dealership agreement during the pendancy of the proceedings before the Writ Court has been executed on 04.11.2011 between him and the Corporation. Even in that agreement clause 1-c has been incorporated which entitles the Corporation to curtail or restrict the petitioners area of operation and appointment of one or more dealers for the said area.
4. It is further significant to notice that the Corporation had appointed Gulshan Kumar Datta, added respondent no. 7, as its dealer for Poonch District in the year 1995. The appellantpetitioner filed a civil suit to question the dealer ship in favour of the added respondent no.7. The suit was dismissed for want of prosecution on 27.02.1996. It was after a period of more than ten years that the appellant-petitioner filed the writ petition in the year 2006 with a prayer that his area of operation should not be restricted or curtailed in view of the policy dated 05.08.1986.
5. We have heard learned counsel for the parties at a considerable length and are of the view that the appeal does not merit admission.
6. There are many insurmountable hurdles in the way of the appellant-petitioner to succeed. The first issue is that having tried his fate in a civil suit, which has been dismissed for nonprosecution on 27.02.1996, the appellant-petitioner cannot be permitted to re-agitate the matter. It is also pertinent to notice 5 that added respondent no.7 was selected and appointed as dealer of Poonch District on 10.11.1995. By filing the writ petition relatable to this appeal, the appellant-petitioner is trying to achieve indirectly what could not be achieved directly in the suit. In the suit the appellant-petitioner has claimed the relief for permanent injunction restraining the Corporation from supplying Kerosene Oil to added respondent no.7 and also restraining added respondent no.7 from lifting the Kerosene Oil from the Corporation and supplying the same in District Poonch. A copy of the order dismissing the suit dated 27.02.1996 has been placed on record with the objections filed by the added respondent no.7 (Annexure R-3). After a period of ten years the appellant-petitioner could not have filed the writ petition. The cause of action, if any, had arisen to appellant-petitioner in the year 1995 when added respondent no.7 was appointed as a dealer. On that account alone the writ petition was liable to be dismissed, as has been rightly observed by the learned Single Judge.
7. The other hurdle in the way of the appellant-petitioner is that after the death of Mrs. Shanta Sharma the contractual relationship has come to an end. It does not require any imagination that bilateral contract comes to an end with the death of one of the parties to the contract. Mrs. Shanta Sharma was the sole proprietor and she died on 10.02.1992. Even then 6 her son Ashesh Sharma continue to get the supply of Superior Kerosene Oil etc. in the restricted areas. The arrangement was virtually worked out by execution of a new agreement between Shri Ashesh Sharma and the Corporation. Moreover the area of operation, in any case, could not have been kept static, as has been rightly observed by the learned Single Judge. The area of operation which was allocated to Shri Ram Lubhaya in the year 1974 was then realigned in the fresh agreement executed between his widow Mrs. Shanta Sharma and the Corporation. The same agreement could not have continued to govern the relationship of the parties after the death of Mrs. Shanta Sharma, particularly when under para 1-c of the agreement the area of operation could be curtailed or restricted by the Corporation.
8. We see no unfairness or unreasonableness on the part of the Corporation to either curtail the area of operation in respect of the supply permitted by it to Shri Ashesh Sharma, who strictly speaking, was not entitled to any such concession. The Corporation has done well by taking a humanistic view of the situation and still accepted the appellant-petitioner as its dealer. This is what is exactly expected from the Corporation in terms of observations of Honble the Supreme Court in the case of Shalimar Gas & Ors. v. Indian Oil Corporation Limited and anr, (2010) 13 SCC 760.In that case one war widow was allotted 7 dealership for distribution of Gas. On account of various factors there was re-constitution of the dealership agreement and the war widow retained 51% share when the agency was reconstituted. On the allegation that she had sold her 51% share to the third party, her dealership agreement was cancelled on that ground. In para 7 of the judgment their Lordships observed that humanitarian view of the facts and circumstances should have been taken because the dealership of distribution of Gas was the only source of livelihood with the widow. Thus we find that the approach adopted by the Corporation is consistent with the aforesaid view.
9. For the reasons stated above the appeal does not merit admission, nor any detailed discussion on the farfetched arguments advanced by Mr. Thakur would be necessary. The appeal is frivolous peace of litigation and is wholly ill advised. Accordingly the same is dismissed.
10. In the peculiar facts and circumstances of the case, we refrain from imposing any cost on the appellant-petitioner. (Mohammad Yaqoob Mir) (M. M. Kumar) Judge Chief Justice JAAMU:
18. 12.2012 Anil Raina, Secy.