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Judgment
Milind Ramesh Phadke, J
The present petition under Article 226 of the Constitution of India has been directed against the order dated 17.07.2023 passed by respondent No.4 in case No.GWRO/PV/RET/MDG/21-22, whereby the dealership of the petitioner's retail outlet of Patrol Pump has been terminated on the Technical grounds of some soldering rework done on the control card of of Dispensing unit (DU) and in the light of the clause 8.2 of the Marketing Discipline Guidelines, the said error was found to be a critical irregularity.
Learned senior counsel Shri K.N. Gupta alongwith Shri Sanjay Bahirani, advocate submits that the termination of dealership of the present petitioner is per se illegal as clause 8.2 of the Guidelines on the basis of which, the termination of the dealership of the petitioner's retail outlet has been ordered is not absolute but comes with a rider of clause 5.1.4 of Marketing Discipline Guidelines which implies that apart from the condition as mentioned in sub-clause (iv) of clause 8.2 there should be an intend of manipulation and from the entire order (Annexure P/1) the said intend of manipulation is not reflected. Thus, only on the basis of clause 8.2 of Marketing Discipline Guidelines the said order could not have been passed. He had placed reliance in the matter of Govind Saraf Kisan Seva Kendra, Machalpur Vs. Indian Oil Corporation Ltd., Bhopal [2017(1) MPLJ 713] and had argued that in similar set of facts the coordinate Bench of this Court had restored the dealership which was terminated. Further reliance placed in the matter of Sudarshan Motors, Gwalior Vs. Hindustan Petroleum Corporation [2011 (3) EFR 612], wherein also on similar facts the cancellation of dealership agreement of the petitioner was found illegal and hence was quashed.
Per contra, Shri Parth Dixit, learned counsel appearing on behalf of respondents No.2 and 3 submits that as per clause 66 of the agreement, there is an arbitration clause and without referring the matter to the arbitrator as mentioned therein the present writ petition has been filed, which is not maintainable. While placing reliance on Section 14 of Specific Relief Act, learned counsel further submits that there are certain contracts which can not be specifically enforced and one of the contracts mentioned therein is, in which the nature of contract is determinable and since in the present case the nature of contract is determinable between the parties, the said contract cannot be enforced for revival of the dealership under writ jurisdiction.
At this juncture, Shri K.N. Gupta, learned senior counsel on the contention raised by the counsel for the respondents No.2 and 3 with regard to availability of alternative remedy, while placing reliance in the matter of Bharat Petroleum Corporation Ltd. Vs. M/s. Shukla Filing Center Ratanpura, which is based on judgment of Hon'ble Apex Court, passed in Arbitration Case No.66/2019 on 12.10.2022 wherein it has been held that in the cases of termination of the contracts since it is a non arbitral dispute, it cannot be referred for arbitration. Thus, it was contended that since the present dispute of termination of the contract is non arbitral, therefore, the remedy for approaching the arbitrator as per clause 66 of the agreement is not available with the present petitioner. In alternate it was contended while placing reliance on para 7 of the judgement of Hon'ble Apex Court in the matter of Harbanslal Sahnta Vs. Indian Oil Corporation Ltd.[AIR 2003 Supreme Court 2120] that in appropriate cases, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies; (i) where the writ petition seeks enforcement of any of the Fundamental Rights; (ii) where there is failure of principles of natural justice or, (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act and is challenged and as the present case attracts the applicability of first contingency, therefore, alternative remedy is not barred.
Heard learned counsel for the parties and perused the entire material available on record, this Court finds force in the submissions made by senior counsel, therefore, as an interim measure, till the next date of hearing effect and operation of the impugned order (Annexure P/1) is directed to remain stayed.
Let notice be issued to the respondents.
Shri Parth Dixit, learned counsel appearing for respondent No.2 and 3 takes notice on their behalf and prays for four weeks' time to file reply in the matter.
Let notice be issued to other respondents on payment of process fee within four working days through registered A.D. post as well as ordinary mode, returnable within four weeks.
List the matter after four weeks.
E-copy/certified copy as per rules/directions.