Petitioners have filed the present writ petition for setting aside the judgment dated 16.4.2010 (Annexure 14 to writ petition) as well as judgment dated 1.2.2010 (Annexure 11 to writ petition).
Facts arising out of present writ petition as stated are that petitioner No.2 was appointed as Retail Outlet Dealer by the respondent-Corporation through dealership agreement dated 17.11.2006. Petitioners have not violated any terms of the aforesaid agreement. Petitioners were appointed as dealer by the Corporation of both Motor Speed (in short 'MS') and High Speed Diesel (in short 'HSD') on the basis of advertisement dated 23.12.2005 in daily newspaper 'Amarujala'. They were appointed as retail outlet dealer. Under Clause II in Column 'E' it was provided that retail outlet was to be developed as a company lease and under this category construction of the petrol pump was to be done by petitioners and thereafter the land as well as the construction will be given by petitioners on lease to the Corporation. Under Clause III it was provided that in category 'F' a retail outlet will be developed in which petitioners will give the land on lease to Corporation and the construction will be made over this land by the Corporation and not by petitioners. In both conditions, appointment of dealership was not dependent on execution of lease. The Corporation did not made any construction or development over the site where the dealership was allotted to petitioners. Petitioners have invested about Rs.45,00,000/- for development of land as well as costs of land. Petitioners have made construction on the site after dealership agreement was executed between petitioners and the Corporation. There was no clause that retail outlet for selling MS and HSD is dependent on the execution of lease.
In the company owned retail outlet, lease is executed by the owner of the land in favour of Corporation and Corporation appoints dealer. In respect of the company lease, construction of site for establishing petrol pump is done by the dealer and lease is executed by the dealer in favour of Company but they are totally independent aspects. Thirdly, in respect of dealer owned category, there is no lease executed by the owner of the land in favour of company and it is the dealer who has to construct infrastructure of the petrol pump. In view of aforesaid fact, three categories, company supplies dispenser unit and storage tank only, which has also been done in the present case. The company has treated petitioners in the third category namely dealer operated out let in which there is no requirement of execution of any lease deed. Petitioners have complied all conditions and agreement also is in the same nature. In this condition, dealership agreement was executed between petitioners and Corporation on 17.11.2006 omitting the clause of execution of lease. An agreement was sent on behalf of Corporation authorities to petitioner No.2 in order to sign the same and sent it back to the Corporation in order to complete the formalities. Supplies of MS and HSD was also started on 31.12.2006 and un-interrupted supply was given. However, they started interfering in the supply without any order in writing being given to petitioners as such the aforesaid act of Corporation is in gross violation of the principle of natural justice as before stopping supply to petitioners, they have not issued any show cause notice or given any reply what is the reason. The Chief Regional Manager of the Corporation is the competent authority to issue show cause notice or any order cancelling dealership license agreement or suspending the supply. No such order for suspending supply or any show cause notice for cancelling petitioners' dealership has been given to petitioners by competent authority. Under the dealer owned retail outlet, no lease is required to be executed between the Company and the owner of the land. Retail outlet of petitioners is dealer owned retail outlet and there is no requirement of execution of any lease either in the agreement or in any other legal document. Petitioners have invested huge amount. This clearly demonstrates that retail outlet of petitioners is dealer owned retail outlet. Various others petrol pumps like such, they are being supplied goods but till date no lease deed has been executed by the owner of the land over which these retail outlets are situated in favour of Corporation. Petitioners moved an application dated 10.3.2008 under the right of Information Act demanding specifically information regarding three categories. Reply of the aforesaid application was given and it was admitted that the administrative decision can be taken for changing dealer owned retail outlet to Company owned retail outlet and vice-a-versa. Corporation being competent to change the category. Petitioners have been dealer owned retail outlet, which was agreed by means of agreement in which it has not been mentioned that land and super-structure are being taken on lease. Due to stoppage of supply and due to huge investment, petitioners were suffering great loss though Corporation was not suffering any loss on account of non- running of petrol pump, therefore, petitioners filed a Suit No.254 of 2009 restraining defendant from interfering in supply of the goods. Notice was served to defendant then an order was passed by the trial court. Instead of complying the order, an appeal was filed against the said order and appeal was allowed by order dated 20.11.2009.
Then petitioners are filing the writ petition before this Court under Article 227 of the Constitution of India against the orders dated 16.4.2010 and 1.2.2010.
Respondents have filed their counter affidavit denying the claim made in the writ petition and has stated that from bare perusal of relief sought in the writ petition it clearly reveals that petitioners have sought quashing of order dated 16.4.2010 (Annexure 14 to writ petition) and order dated 1.2.2010 (Annexure 11 to writ petition). Petitioners have sought permanent mandatory injunction restraining defendant-respondents from interfering in smooth supply of petroleum products in pursuance of the agreement dated 31.12.2006. From perusal of plaint instituted on 26.3.2009, an application under Order 39, Rules 1 and 2 read with Section 151 of Civil Procedure Code was also preferred wherein in the relief clause, same final relief which was sought in the plaint has been sought to be claimed whereby it was also prayed that during pendency of suit, respondent-Corporation be restrained from interfering in supply of petroleum products to petitioners' retail outlet. Trial Court on an application made has passed perfectly valid order rejecting application under Order 39, Rules 1 and 2. Petitioners preferred an appeal which was also decided on 16.4.2010. While confirming the finding recorded by the trial court, prima-facie case and balance of convenience is in favour of petitioners. Therefore, courts below has rightly rejected an application on the principle that final relief cannot be granted by way of interim relief. Hence present writ petition is liable to be dismissed.
Sri Arivind Srivastava, learned counsel appearing for petitioners has submitted before the Court that there being no clause in the agreement dated 31.12.2006 requiring petitioners to execute lease deed. Insistence of respondents for execution of lease deed by petitioners is an arbitrary act but the courts below have not considered while passing the order impugned. The agreement dated 31.12.2006 having been admitted by respondent-corporation. The finding recorded by court below that there exits no agreement suffers from illegality. Further petitioners have been discriminated in view of fact that various similarly situated persons who do not have any lease deed executed in favour of the Corporation being continuously supplied goods without insisting on the execution of lease deed. Petitioners having categorically stated that on account of representation made by respondents and on the basis of direction of respondents they have invested huge amount and on that basis supply of MSD and HSD were given to petitioners from 31.12.2006 to 13.10.2007 continuously, which has not been disputed by the respondent.
Finding recorded by courts below that petitioners have not approached this Court with clean hand as supply was given on twice is perverse. Balance of convenience and irreparable injury was in favour of petitioners, therefore, courts below should have considered claim and would have granted injunction. The Corporation in the garb of lease deed wants to grab the property of petitioners on a pitty amount of Rs.8,500/-. Whereas current rental value of the land is Rs.1,00,000/- per month. The Corporation being fully competent to change category of retail outlet from company own retail outlet to dealer own retail outlet and this being done in the case of petitioners, the insistence of execution of the lease deed suffers from manifest illegality. There being no clause in the agreement dated 31.12.2006 requiring petitioners to execute lease deed. There is no mention of any clause under which petitioners have to execute a lease deed. Contention of respondents that on account of advertisement dated 23.12.2005 and the letter of intent dated 9.10.2006 petitioners have to execute the lease deed is not tenable in eye of law as respondents have waived this condition and they are competent under the policy under which respondents can change the company owned dealership to dealer owned retail outlet. Supply of MSD and HSD is not dependent on the execution of lease deed. The agreement dated 31.12.2006 having been admitted by respondent-Corporation, finding recorded by courts below that there exits no agreement, suffers from patent illegality which vitiates judgments in the eye of law. Similarly situated dealership who were not having lease deed executed in their favour by the Corporation being continuously supplied MSD and HSD. Therefore, lease deed with respect to petitioners amount to discrimination and this aspect has not been considered by the courts below, therefore, the order impugned vitiates.
Petitioners have come with a case before the Court that on account of representation made by respondents and on the direction of respondents, they have invested huge amount and supply was given for about ten months continuously. This has not been disputed by respondents. Therefore, finding recorded by courts below that petitioners have not come before this Court with clean hand, the order impugned vitiates and is liable to be set aside. Prima-facie case, balance of convenience and irreparable injury are three ingredients for granting interim injunction was in favour of petitioners on account of non-supply of the goods but the court below has not considered the same and rejected the application filed on behalf of petitioners. The Corporation in the grab of execution of lease deed trying to grab the property of petitioners on meager amount of Rs.8,500/- though petitioners can fetch an amount of Rs. 1,00,000/- per month from aforesaid Board but court below has not considered this issue and rejected application filed by petitioners. Corporation being fully competent to change the category which has been done in the case of petitioners now not executing a lease deed in favour of petitioners is an illegal act on behalf of respondents. In view of aforesaid fact, learned counsel for petitioners states that order passed by courts below is illegal and without jurisdiction and is liable to be set aside.
Petitioners have placed reliance upon various judgments of the Apex court and this Court of which relevant paras are being quoted below:-
(1983) 4 Supreme Court Cases, 31 GanguBai Bablya Chaudhary and others Vs. Sitaram Bhalchandra Sukhtankar and others "6. When an interim injunction is sought, the Court may have to examine whether the party seeking the assistance of the Court was at any time in lawful possession of the property and if it is so established one would prima facie ask the other side contesting the suit to show how the plaintiffs were dispossessed? We pin-pointed this question and heard the submission. We refrain from discussing the evidence and recording our conclusions because evidence is still to be led and the contentions and disputes have to be examined in depth and any expression of opinion by this Court may prejudice one or the other party in having a fair trial and uninhibited decision. Having given the matter our anxious consideration, we are satisfied that this is not a case in which interim injunction could be refused. Similarly we are of the opinion that if respondents are allowed to put up construction by the use of the F.S.I. for the whole of the land including the land involved in dispute, the situation may become irreversible by the time the dispute is decided and would preclude fair and just decision of the matter. If on the contrary injunction is granted as prayed for the respondents are not likely to be inconvenienced because they are in possession of about 9,000 sq. metres of land on which they can put up construction."
(2006) 8 Supreme Court Cases, 367 M.GuruDas and others Vs. Rasaranjan and others "21. While considering the question of granting an order of injunction one way or the other, evidently, the court, apart from finding out a prima facie case, would consider the question in regard to the balance of convenience of the parties as also irreparable injury which might be suffered by the plaintiffs if the prayer for injunction is to be refused. The contention of the plaintiffs must be bona fide. The question sought to be tried must be a serious question and not only on a mere triable issue. [See Dorab Cawasji Warden v. Coomi Sorab Warden and Others , (1990) 2 SCC 117, Dalpat Kumar and Another v. Prahlad Singh and Others (1992) 1 SCC 719, United Commercial Bank v. Bank of India and Others (1981) 2 SCC 766, Gujarat Bottling Co. Ltd. and Others v. Coca Cola Co. and Others (1995) 5 SCC 545, Bina Murlidhar Hemdev and Others v. Kanhaiyalal Lokram Hemdev and Others (1999) 5 SCC 222 and Transmission Corpn. of A.P. Ltd (supra)]."
(1990) 2 Supreme Court Cases 117 Dorab Cawasji Warden Vs. Coomi Sorab Warden and others "19. In order to attract the second paragraph of this section the subject-matter of the transfer has to be a dwelling house belonging to an undivided family and the transfer is a share in the same to a person who is not a member of the family. Therefore, in order to satisfy the first ingredient of clear existence of the right and its infringement, the plaintiff will have to show a probable case that the suit property is a dwelling-house and if belonged to an undivided family. In other words, on the facts before the court there is a strong probability of the plaintiff getting the relief prayed for by him in the suit. On the second and third ingredients having regard to the restriction on the rights of a transferee for joint possession and the dominant purpose of the second paragraph of Section 44 of the Act, there is danger of an injury or violation of the corresponding rights of the other members of the family and an irreparable harm to the plaintiff and the Court's interference is necessary to protect the interest of the plaintiff. Since the relief of an interim injunction is all the same an equitable relief the Court shall also consider whether the comparative mischief or inconvenience which is likely to issue from withholding the injunction will be greater than that which is likely to arise from granting it, which means that the balance of convenience is in favour of the plaintiff."
(1995) 5 Supreme Court Cases, 545, Gujarat Bottling Co. Ltd. And others Vs. Coco Cola Co. and others "43. The grant of an interlocutory injunction during the pendency of legal proceedings is a matter requiring the exercise of discretion of the Court. While exercising the discretion the Court applies the following tests-(i) whether the plaintiff has a prima facie ease; (ii) whether the balance of convenience is in favour of the plaintiff; and (iii) whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed. The decision whether or not to grant an interlocutory injunction has to be taken at a time when the existence of the legal right assailed by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. Relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection has, however, to be weighed against the corresponding need to the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The Court must weigh one need against another and determine where the balance of convenience lies. (See : Wander Ltd. v. Antox India P. Ltd. 1990 (Supp) SCC 727 at Pp. 731-32). In order to protect the defendant while granting an interlocutory injunction in his favour the Court can require the plaintiff to furnish an undertaking so that the defendant can be adequately compensated if the uncertainty were resolved in his favour at the trial."
On behalf of respondents Sri Vikas Budhwar learned counsel has appeared before the Court and has submitted that on the basis of advertisement made in the newspaper 'Amarujala' with regard to location for granting retail outlet on the basis of certain criteria provides that prospective candidates have to give details of land which he seeks offer of lease of 15 years with renewal clause of 15 years. Petitioners offered the location situated within half kilometers of Buteshwar Chauk Anwla Ram Nagar Road, district Bareilly. The application filed by petitioners itself shows the offer made by petitioners. On 8.4.2006, provisional penal was issued and name of petitioners was placed at serial No.1 and he has obtained 81.8% marks in total inclusive of marks under the land and infrastructures which was 34.3% marks. A letter of intent was issued to petitioners asking them to lease the land for a period of 15 years and then respondent-Corporation will develop the site. By letter dated 31.12.2006 petitioners have sent letter to respondent No.3 according to lease the land situated at Khasra Gata No.25, Bhuteshwar Chauk, Aonla Ram Nagar Road, Bareilly for 29 yeas at the rate of Rs.8,500/- per month rent for area being 1117 Sq.metres.
Supply was granted to petitioners then on 25.9.2007, the sales officers requested petitioners that lease deed has to be executed, petitioners sent a letter stating therein that they have never refused to execute the lease but it was mentioned in the said letter that he will accept on a rent of Rs.20,000/- per month. As agreement was not executed, therefore, supply was stopped. Respondent No.3 sent a letter on 21.1.12008 to resolve the issue and to execute lease deed. Petitioners preferred a writ petition before this Court being Writ Petition No.10095 of 2008 for quashing the orders dated 21.1.2008 passed by the Corporation. In that writ petition, notices were issued and time for counter and rejoinder affidavits were granted. During pendency of aforesaid writ petition present suit has been filed for granting injunction in favour of petitioners. An ex-parte injunction was granted on 31.3.2009 and subsequently the writ petition was dismissed being infructuous on 9.7.2009. Answering respondents filed an appeal against the ex-parte inunction order dated 31.3.2009 and that order was set aside by order dated 20.11.2009. Again petitioners filed another Writ Petition No.1265 of 2009 and this Court has directed the trial court to decide inunction application within a specific period. Then again injunction application was rejected and miscellaneous appeal filed by petitioner was also rejected.
Sri Budhwar learned counsel appearing for Corporation has submitted that execution of lease deed is a necessary requirement in case of Corporation any retail outlet dealership it is necessary to execute a lease deed. Further submission has been made that from the advertisement dated 23.12.2005, it is clear that prospective candidate has to submit the details of land which is sought to offer for the purposes of being selected as retail out let dealer for a period of 15 years with a renewal clause of 15 years. From perusal of application made by petitioners himself, petitioners applied in pursuant of the aforesaid order vide application dated 21.1.2006 and he offered the location. On the basis of land which was being sought to be offered by petitioners when provisional merit was declared he was empowered as Serial No.1 awarding total land and infrastructures. This clearly goes to show that it was an advertisement an offer as well as the application of petitioners for corporation owned dealership. The letter of intent issued to petitioners also shows that they have to execute a lease deed. The selection of petitioners and placement being at serial No.1 on merit was on the ground of fact that 34.3% marks was awarded to petitioners under the head of land and infrastructures.
He has also brought to the notice of the Court regarding advertisement dated 23.12.2005 read with item No.VII with further provision contained under Clauses 14 and 16, it reveals that availability of suitable land for setting up of retail outlets at the advertised location is the essence of the project and wherever it has been indicated in the advertisement that land is also needed at the advertised location, applicants who readily have suitable site available for setting up of retail outlet or have a firm commitment from the land owner for purchase /lease of site, applicants willing to transfer the land on ownership/long term lease to HPCL would be given preference while awarding marks under the head 'Land and Infrastructure' and in case after selection the applicant is unable to provide the land indicated in the application within a period of two months from the date of Letter of Intent (LOI), HPCL will have the right to cancel the allotment of dealership made to the applicant. Hence in these circumstances the contention of the petitioner that execution of lease deed is not mandatory or there is no requirement to lease the land by the petitioners to the Corporation is patently misconceived. The selection of the petitioner had been made on the basis of the necessary condition of offering the land and subsequent lease of the same. However, the petitioner himself did not lease the land despite he assured and offered that he would lease the land subsequently, thus in these circumstances the orders impugned are perfectly valid, in accordance with law.
According to respondents petitioners were ready to lease out the land for a period of 29 years at the rate of Rs.8,500/-. Contention of petitioners to this effect that there is no clause of execution of lease deed, is totally incorrect. Clause 19 of the agreement dated 31.12.2006 is clear to this effect. Petitioners from time to time according to this benefit has taken various pleas. On one hand he has argued that there is no requirement of execution of lease deed and the Corporation cannot insist upon the petitioners to execute lease deed but on the other hand petitioners by means of letter dated 31.3.2006, which is already on record of the paper book, petitioners themself stated that they never refused to execute the lease deed. Petitioners are approbating and reprobating at same time, therefore, petitioners are not entitled for any relief. Reliance has been placed upon the following judgments:-
1. AIR 1965 Supreme Court, 241 C. Beepathuma and others Vs. Velasari Shankaranarayana Kadambolithaya and "18. The Indian courts have applied this doctrine in several cases and a reference to all of them is hardly necessary. We may, however, refer to a decision of the Madras High Court in Ramakottayya v. Viraraghavayya, ILR 52 Mad 556: (AIR 1929 Mad 502 FB) where after referring to the passage quoted by us from White and Tudor, courts Trotter, G. J. observed that the principle is often put in another form that a person cannot approbate and reprobate the same transaction and he referred to the decision of the Judicial committee in Rangaswami Gounden v. Nachiappa Gounden, ILR 42 ) Mad 523: (AIR 1918 PC 196). Recently, this court has also considered the doctrine in Bhau Ram v. Baij Nath Singh, AIR 1961 SC 1327."
2. 2002 (1) ESC(Allahabad), 511 R.K.Gupta Vs. The Chairman/Managing Director, U.P. Rajya Vidyut utpadan Nigam Ltd.
"7. On the other hand,Sri S.P.Mehrotra learned counsel for the respondents has relied on the decision of the Supreme Court in C.Beepathuma and others v. Velsari Shankaranarayana Kadambolithaya AIR 1965 SC 241 and he has contended that the petitioner cannot approbate and reprobate. By the order dated 9.1.2001 the petitioner was finally absorbed in U.P. Power Corporation Ltd. Subject to the terms and conditions mentioned in the said order. The said order specifically provided that if the Engineer Officers who stood absorbed in U.P. Power Corporation Ltd. are posted on 9.1.2001 in U.P. Rajya Utpadan Nigam Ltd. They were to continue to remain on deputation to the said Corporation up to 31.3.2002 despite their absorption in U.P. power Corporation Ltd. Hence the petitioner who was posted on 9.1.2001 at Panki Thermal Plant, Kanpur which has now come under the U.P. Rajya Vidyut Nigam Ltd. Continues to remain on deputation in that Corporation despite his absorption in U.P. Power Corporation Ltd. The order dated 9.1.2001 is a composite order and the petitioner cannot claim the benefit of part of it while not accepting another part. Similarly, the petitioner on accepting his promotion as Deputy General Manager by order dated 10.12.2001 is also bound by the conditions mentioned in the said order namely he was to remain on deputation with U.P. Rajya Vidyut Utpadan Nigam Ltd. Thus, both the orders dated 9.1.2001 and 10.12.2001 are composite orders and cannot be accepted in part only."
Sri Vikas Budhwar learned counsel for respondents submits that in view of alleged agreement dated 31.12.2006, being Dealership agreement there being no condition of execution of lease deed, thus, requirement of execution of lease deed had been waived. This contention of petitioners cannot be accepted in view of Clause 19 of the Dealership Agreement. He has placed reliance upon a judgment of the Supreme Court reported in (2004) 1 Supreme Court Cases, 12, Citi Bank N.A. Vs. Standard Chartered Bank and others.
As regards contention of petitioners that they are having balance of convenience in view of fact that they have already invested Rs.45,00,000/- this cannot be a ground for granting injunction order in favour of petitioners as requirement was that petitioners were to execute lease deed. If on his own risk, petitioners have invested a huge amount that cannot give any benefit to petitioners. Trial court has rightly rejected the application filed by petitioners under Order 39, Rule 1 of Civil Procedure Code being fact that from the relief sought in the plaint it is clear that petitioners' relief and the interim relief are the same. It is settled in law that final relief cannot be granted by way of interim relief. Admittedly, on the date when suit was filed, supply was stopped on 13.3.2007. Therefore, the court below has rightly refused to grant injunction in favour of petitioners. Reliance has been placed upon judgment of Apex Court judgement reported in 1990 (2) Supreme Court Cases, 177. In paragraph 16, it has clearly observed as follows:-
"16. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final haring when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guide-lines. Generally stated these guidelines are:
1. The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.
2. It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.
3. The balance of convenience is in favour of the one seeking such relief."
In view of aforesaid fact, learned counsel for respondents submits that trial court has rightly rejected claim of petitioners.
I have considered the submissions of petitioners and respondents. From the perusal of record, it is clear that on the basis of advertisement dated 23.12.2005, petitioners applied for grant of retail outlet of MSD, HSD. From perusal of advertisement Clause 7 provides that prospective candidates have to give detail of the land which they wants to offer for a period of 15 years subject to renewal. Application of petitioners also shows that they have offered a location to that effect. On that basis, claim of petitioners was considered and they were placed at serial No.1 having 81.8% marks. Only 34.3 % marks was awarded under the land and infrastructure. If said marks is made minus then merit of petitioners will go and he cannot come under the merit for the purposes of grant of outlet dealership. The letter dated 9.10.2006 clearly shows that respondents have sent a letter to respondents asking him to lease the land for a period of fifteen years. Letter dated 31.12.2006 shows that petitioners have offered to that extent, though for 29 years, at the rate of Rs.8,500/- per month as a rent for the area of 1,117 square meters. On that anticipation, supply was made, further on the basis of sale officer's letter petitioners have himself sent a letter that he has never refused to execute lease in favour of Corporation but in spite of aforesaid fact when lease deed was not executed supply of goods was stopped. Writ petition was filed but no interim order was granted by this Court on 21.2.2008. During pendency of suit he has filed a suit for injunction and obtained ex-parte injunction on 31.3.2009, that was set aside. Then he filed a writ petition which was disposed of directing court below to decide the application within a specific period.
Now question for consideration before this Court is whether in the facts and circumstances of the present case, petitioners were entitled for ad-interim injunction or not. Admittedly supply was stopped in 2007, question for consideration before the Court which is to be adjudicated is whether this was an advertisement for company owned retail outlet or dealer owned outlet. From the advertisement dated 23.12.2005, it shows that it was a Company owned dealership with a condition that applicant will provide a land and infrastructure and after that lease deed was to be executed for a particular period on the basis of rent and then supply will be given but the ownership will be of the Corporation. From perusal of application it also appears that application was also to that effect. The letter of petitioners also shows that when letter dated 29.5.2005 was issued, in reply to that letter, petitioners have stated that they have never refused to lease the land in favour of Corporation. Meaning thereby they were fully aware that they have to execute a lease deed on the terms and conditions mentioned in the advertisement and it was a Corporation owned dealership. In case petitioners have invested huge amount on their own risk that cannot give any benefit to petitioners.
As regards contention of petitioners that power is there to the Corporation to change category, there is no dispute to that effect but it cannot be as a matter of right being fact that consideration for dealership are altogether different of different categories. The merit has been considered according to category. From perusal of record it is clear that advertisement was for Corporation owned dealership. Consideration of petitioners was accordingly. Therefore, now whether in case of failure of execution of lease deed if the Corporation has stopped the supply whether in such circumstances, petitioners were entitled for any interim injunction from the court below. In the opinion of the court such relief cannot be granted by way of interim injunction. There may be a case that if the plaintiff- petitioners are able to show that a final relief to that extent can be granted. From perusal of relief sought in the present writ petition, is quashing of the orders passed by the courts below i.e. regarding refusal of injunction order. From perusal of plaint filed before the Court, it is clear that final relief and the inteirm relief are the same. It is settled in law that final relief cannot be granted by an interim relief. In paragraph 16 of the Cawasji Warden's case (supra), the Apex Court has held that interlocutory mandatory injunctions are thus granted generally to preserve or restore the status-quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted. Granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom such order has been granted.
Basic ingredients for granting ad-interim injunction order is prima-facie case, balance of convenience and irreparable injury. The courts below have considered the issue at length and has recorded a finding that there is no case in favour of petitioners being fact that admittedly, supply was stopped in 2007 and the suit was filed in 2009. Further as regards irreparable injury, the courts below have recorded a finding that there cannot be said to be irreparable injury in case the injunction is not granted which cannot be compensated in terms of money. The Apex Court as well as this Court has taken a view that purpose of granting interim injunction though is to lesson the risk of irreparable injury and injustice which cannot be compensated for in money and which would result from the violation by defendant of some right of plaintiff. Therefore, this fact has to be established, if it has not been established, plaintiff is not entitled for ad-interim injunction order.
In view of aforesaid facts and circumstances, I am of opinion that courts below has rightly rejected the application filed by petitioners. The judgment and order passed by courts below cannot be said to be illegal without consideration of relevant record and pleadings of the parties. Hence, the present writ petition is hereby dismissed.
It is, however, expected that trial court will decide the suit, if possible, within a period of six months.
No order as to costs.