Hon'ble Ritu Raj Awasthi,J.
Order (Oral) This writ petition shall also govern the disposal of connected writ petition Nos.4782 (MB) of 2009 and 5009 (MB) of 2009 as the cause of action impugned therein is common.
We have heard learned counsel for parties and perused the pleadings of writ petition.
This writ petition has been filed by a partnership firm consisting of four persons whose land was taken on lease for opening of a retail outlet of the Bharat Petroleum Corporation-opposite party no.1. The petitioner firm was thereafter alloted ad-hoc dealership in respect of the new retail outlet also, apart from the one being run by it. It appears that after the lease of land was executed, the Corporation invested a huge amount of Rs.60/- lacs in advance but failed to get an eligible and suitable dealer. Thus, the petitioner firm was entrusted with this new outlet as additional charge only for the reason that the firm was a permanent dealer of some other outlet of the Corporation and worked to the satisfaction of the Corporation. It also appears that after petitioner firm's land was taken on lease by the Corporation vide lease agreement dated 17.01.2004, an ad-hoc dealership of the new outlet opened on its land was also given to it on 12.02.2004. The petitioner firm was allowed to run the outlet upto 18.05.2009, say over five years, when the impugned order of cancellation of adhoc dealership was passed by the Territory Manager, Gorakhpur (opposite party no.3), without there being any complaint and without issuing a show cause notice. It is this order which has been called in question in these writ proceedings.
At the very outset, learned counsel for the respondent corporation brought to our notice a judgment passed by a Division Bench at Allahabad reported in 2009 (5) ALJ 525 [M/s B.P. Sharma & Company vs. Bharat Petroleum Corporation Limited and another] so as to contend that ad-hoc dealerships are given only as an interim arrangement till a regular dealer is appointed and the ad-hoc dealer, thus, has no right to claim grant of regular dealership.
On the other hand, learned counsel for petitioner firm while refuting the preemptive contention of learned counsel for respondent corporation submitted that the judgment under reference would not apply in the instant case for the reason that in the said judgment the petitioner ad-hoc dealer had prayed for continuance of ad-hoc dealership only and had not sought the relief for making it regular/permanent. That apart, learned counsel for the petitioner firm referred to a brochure of the respondent corporation dated 01.11.2004 (Annexure-11) with particular reference to paragraph 2, which deals with the mode of selection of dealers. Learned counsel took us to sub-para 2(b) to argue that the land owners whose lands have been taken on lease can be granted dealership, if otherwise found to be suitable. It is also a contention of learned counsel that the status of petitioner firm was not that of an ad-hoc dealer and simply because there was an advertisement for allotment of ad-hoc dealership it should not be denied the right to claim a regular dealership, in view of its continuing for over 5 years as such to the satisfaction of the Corporation and if the firm is otherwise found to be suitable and eligible for the grant of regular dealership.
Shri Anurag Shukla, learned counsel for the respondent corporation, who initially placed reliance on the judgment of Allahabad High Court in answer to submission of learned counsel for petitioner, contended that the petitioner firm would not be entitled to get a second dealership as it is already a regular dealer of another outlet. Shri Shukla also submitted that as per the policy of the Ministry of Petroleum, Government of India, generally a second regular dealership should not be granted.
On due consideration of rival submissions, we notice that the dispute is confined to the question as : Should a dealer Firm of an outlet be considered for another outlet which is opened on the land belonged to it and taken on lease pursuant to an advertisement or by way of offer by owner itself ? The second question that may require consideration is regarding the applicability of the policy of Ministry of Petroleum, Government of India, in such cases. In order to answer the aforesaid questions, we may notice that petitioners' land was taken for opening a retail outlet on lease basis and the corporation invested a huge amount of Rs.60/ lacs in anticipation to get a suitable dealer or with a view to run the outlet itself. However, it appears that since both the options were not found feasible, the corporation thought it expedient to entrust the adhoc dealership of new outlet also to the petitioner firm which was already an existing dealer of another outlet belonging to the corporation. Since this arrangement continued for about five years to the satisfaction of the corporation there was a legitimate expectation that the petitioner firm, having second ad-hoc dealership though only on paper, would finally get a permanent dealership of the second outlet also, as there was no ostensible bar in the advertisement to seek second allotment. Moreover, another public sector undertaking namely Indian Oil Corporation has already laid a policy which may support the claim of petitioner firm inasmuch as it has set out that a nominee of existing dealer cannot be considered for the grant of second dealership but it does not create bar for any of the owners of the land. The said policy has been annexed herewith as Annexure-10, which is reproduced for ready reference as under:
"The following guidelines will be strictly observed while awarding Retail Outlet dealership to land owners/their nominees in terms of our Policy Circulars No.60/09-2K3 dated 4.9.2003 and 67-02/2K4 dated 12.2.2004:
(a) The first preference for award of dealership will be landowner subject to his/her being eligible for award of dealership as per existing guidelines and norms.
(b) Landowner's close relatives i.e. spouse, Father/Mother, Brother/Brother's wife, Son/Daughter-in-Law, Daughter/Son-in-Law, Grandson/Granddaughter or their spouse may be considered for award of dealership in the following circumstances:
(i)Landowner does not meet the eligibility criteria for dealership in terms of our existing guidelines for selection of dealers.
(ii)After interview by the Selection Committee, it is found that the landowner has not secured the minimum qualifying marks.
(iii)The landowner is not interested in having the dealership himself due to valid reasons to the satisfaction of the State Office. In this situation, the reasons for the same will be recorded and approval of the State Head will be taken for award of dealership to the nominee of the landowner, which will be his/her 'Relation' as defined above.
(c)There could be situations where neither the landowner himself/herself nor any of his relations as defined above meet the criteria of becoming eligible for award of dealership or the landowner is not interested in nomination in favour of his relations. In such exceptional circumstances, the landowner may be permitted to nominate any other individual for award of dealership subject to the following conditions:
(i)The nominee must meet the eligibility criteria and secure minimum qualifying marks on the basis of interview by Selection Committee.
(ii)The landowner will have a partnership in the dealership. His share in the partnership will be minimum 50% if he meets the eligibility criteria and minimum 49% in cases where the landowner does not meet the criteria with regard to age and educational qualification. However, in all cases the landowner must be an Indian national and should not be convicted for criminal/economic offence involving moral turpitude.
(iii)The reasons for such nomination will be recorded and the nomination will be approved by the State Head."
It is an admitted case that there is no specific instruction of the respondent Corporation on the question as to whether a land owner whose land has been taken on lease can not be considered for grant of second dealership if the land owner is found to have worked to the satisfaction of the corporation in running the first outlet, having been allotted on regular basis. Silence of the corporation on the question of allotment of second outlet to the land owner may be misused by the officers in exercise of discretion and we notice that the impugned order is one of such types passed by the Area Manager of the corporation. The only reference that we could find out on the issue is the brochure of 2004 containing it in Para 2(b), which reads as under:
"2(b) Direct offer of suitable land by land owners can also be considered for development of retail outlet and award of dealership subject to the location being feasible/commercially viable and the land owners or his nominee found suitable. Such cases may not be advertised."
The corporation should have laid down a clear policy/statement that an existing dealer whose land is taken on lease for opening a new outlet shall not be granted another dealership and such statement should be clearly mentioned in the advertisements and brochures. On the other hand, an argument to the contrary, only on the basis of the circular of Ministry of Petroleum, Government of India (which could not be produced during the course of hearing), cannot be appreciated without a valid reason, and more so, when a similarly situated corporation namely Indian Oil Corporation has laid down a clear policy on such matters. There is thus no bar to consider the claim of petitioner existing dealer for grant of dealership of another retail outlet, as the land taken for opening the second retail outlet belonged to it. Moreover the petitioner firm has already worked to the satisfaction of the Corporation also, while running the second outlet for a considerable period of over 5 years. Besides, the bar in granting of multiple dealership under the policy of Ministry of Petroleum, Government of India, as aforesaid, shall also not disentitle the petitioner to put in its claim for the second one, since its land was taken for opening of the said retail outlet which it ran for over 5 years.
Thus, this bunch of writ petitions is hereby allowed and the impugned orders are consequently quashed.
Order Date :- 23.2.2012/A. Katiyar