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Judgment
Palok Basu and D.K. Seth, J.—Smt. Pushpa Devi Wig has filed the first writ petition that is Writ Petition No. 16313 of 1993 which contains the prayer that the respondentIndian Oil Corporation (for short the I.O.C.) be directed by a writ of Mandamus to grant the letter of intent of the retail outlet situate at 16A, Transport Nagar, Kanpur to the petitioner for running petrol pump in terms of the Award dated 25111991. The second prayer is that the I.O.C. be prohibited from extending ad hoc dealership of opposite party No. 4, namely, Jagdamba Petrol Pump, proprietorship of one Lal Singh Tomar, who admittedly had been given only ad hoc dealership in view of some dispute between the petitioner and other partner in the firm which was the original licensee/dealer of the aforesaid petrol pump.
The other Writ Petition, being Writ Petition No. 27160 of 1995, has been filed by Naik Raj Bahadur Rathore with the prayer that the I.O.C. be commanded not to grant dealership of the retail outlet at 16A, Transport Nagar, Kanpur except to persons eligible under the "defenceQuota" as per Rules of the Corporation.
It may be mentioned that in these two writ petitions, applications for proceedings under Article 215 of the Constitution of India, have also been filed and further that the parties have exchanged affidavits and both the writ petitions have matured for hearing. The cases were taken up by special mention because of inordinate delay and further that the petitionerSmt. Pushpa Devi Wig happens to be a widow of an exArmy personnel and has reached evening of her life, delay in decision of the dealership issue was likely to frustrate her remaining years by keeping her engaged in the case for long.
Sri Vineet Saran and Sri Pankaj Bhatia on behalf of the petitioners, Dr. R.G. Padia on behalf of the I.O.C. and Sri Ramendra Asthana on behalf of the private opposite partyJagdamba Petrol rump run by Sri Lal Singh Tbmar, have been heard at considerable length and entire record of the cases have been perused.
Since during the course of arguments, reference was also made to the earlier decisions, the file of Writ Petition No. 4376 of 1988 and Writ Petition No. 5496 of 1988, both of which were disposed of by a judgment of the Division Bench dated 1751988, were also summoned from the office in order to appreciate the arguments and set at rest the controversy as far as possible in these two writ petitions.
The short facts are that on 76� 1973 Fit. Lt. W.N. Wig (retired) and Major J.S. Bisht (retired) were allotted under the "defencequota" the retail outlet at 16A, Transport Nagar, Kanpur and were also dealer thereof, by the I.O.C. It was in the nature of a partnership firm of the said two exArmy personnel, which was entered into through an agreement dated 2481973. Unfortunately, Fit. Lt. W.N. Wig died, about which intimation was sent to the O.O.C. on 21121986 by the petitionerSmt. Pushpa Devi Wig. As the events turned there happened to be some dispute between the petitionerwidow and other surviving partner, namely, Major J.S. Bisht and ultimately the petitioner came to know through a notice published on 1031988 in a local newspaper that dealership of the retail outlet aforesaid has been terminated by the I.O.C. It is that termination ore'' ; which became subjectmatter of Writ Petition No. 4376 of 1988 and Writ Petition No. 5496 of 1988.
It transpires that in the meantime the I.O.C. had made ad hoc settlement of the said retail outlet with the private opposite party in this writ petition, namely, Jagdamba Petrol Pump, proprietorship of Lal Singh Tomar when those two writ petitions were finally disposed of by the aforesaid judgment dated 1751988, it contained a direction that:
"The petitioner may approach the Director Marketing of I.O.C. for arbitration of the dispute, the same being between herself and Maj. J.S. Bisht on the one hand and allotment of dealership to her exclusively as Maj. J.S. Bisht does not agree, on the other...............The third point was about the legality of appointment of M/s. Jagdamba Service Station as ad hoc dealer. The petitioner may, as stated above, raise the dispute to the Director Marketing, who is expected to decide the same within a period of one month of being approached. Till the dispute has not been resolved, M/s. Jagdamba Service Station will continue to work as such."
It is obvious in spite of the aforesaid order of the Division Bench dated 1751988, the petitioner''s case was not considered in accordance with the direction issued as quoted above, hence the petitioner was compelled to file the present Writ Petition No. 16313 of 1993. It is further admitted to the parties that private opposite partyJagdama Petrol Pump is still continuing with the ad hoc dealership. It is strange that ad hoc dealership has continued for more than ten years.
The litigation in between should be summarised in one paragraph because that is the matter in which and for which no comments can be made by this Court at this stage.
The I.O.C. had referred the matter to arbitration and one K.S. Nayyar, a Senior Officer of I.O.C. was appointed as the sole arbitrator, whose nomination was made by none other than the Chairman of the I.O.C. He passed a detailed award upholding the claim of the petitionerSmt. Pushpa Devi Wig. It, however, transpires that Major J.S, Bisht filed an objection against the said award. It also transpires that for some supposed reasons, the I.O.C. also filed objection against the said award. The court entertaining objection, has passed certain interim orders. In the meantime, the private opposite party Jagdamba Petrol Pump, through its proprietor Lal Singh Tomar has filed a suit and also obtained some interim orders therein. All these matters are pending and it is painful to note that they are still pending in spite of the fact that the petitioner had tried to get the matter decided as expeditiously as possible but has failed in all her attempts for no justifiable reason. It is hoped that whichever court or Tribunal the matter may be pending, shall decide the cases as expeditiously as possible preferably within a period of six months from the date a certified copy of this order is produced by the parties before the Court or the tribunal, as the case may be.
As the award also failed to give any relief to the petitioner, she came out with certain representations to the I.O.C. but they also apparently fell into deaf ears and the ad hoc dealership of private opposite party continued unabated forcing the petitioner to file the present writ petition.
When the writ petition was filed before the Division Bench which consisted of Honble Mr. Justice A.P. Misra (as His Lordship then was) and Honble Mr. Justice S.N. Saxena, a detailed interim order was passed, relevant portion of which is quoted below for ready reference:
"In the meantime, the respondent concerned while considering the appointment of ad hoc dealership which is under dispute will consider the case of petitioner also along with others taking into consideration the award and then decide the same keeping the interest of the respondentCorporation pertaining to grant of dealership. If any order is passed before the next date fixed for the case, the same may be made available to the Court for perusal by the petitioner by filing a supplementary affidavit.
List for admission on 20th July, 1993."
In spite of the aforesaid order, it is apparent that the ad hoc dealership of the private opposite party has been continued and that was the reason why the petitioner was advised to file an application under Article 215 of the Constitution of India for proceeding against the I.O.C. having committed contempt of the aforesaid order of this Court.
Before proceeding further, it may be pointed out here that it is admitted case of the I.O.C. that the aforesaid retail outset was allotted under "defence quota" only to Army personnel and was not open for settlement of the said dealership with general public. There is a sound policy behind the aforesaid action of the I.O.C. in earmarking some of the dealerships to retired Army personnel. Who would not appreciate from the core of his heart, the risk and endeavour which the Army Personnel put throughout their career to safeguard the borders of the country and retain freedom for the rest of the citizens. Under these circumstances allotment or earmarking of a dealership only for Army personnel, must be sustained and it should be ensured by this Court that the aforesaid purpose is continued to its logical end.
Coming back to the facts of the petition, it was pointed out by Sri Vineet Saran learned Counsel for petition that by an order dated 1471993, that is much after the interim order dated 15593, the dealership of Jagdamba Petrol Pump was again extended on ad hoc basis but until further orders. Sri Ramendra Asthana, learned Counsel appearing for the said opposite party raised two arguments in opposition in order to sustain the grant of the peculiar type of ad hoc dealership to his client. He argued that the petitioner cannot maintain this writ petition because suits and objections to the award are pending. Since alternative remedies have been taken by the parties, this Court should refrain from passing an order under Article 226 of the Constitution of India, was the first submission of Mr. Asthana.
The second argument advanced by him was that in view of the terms contained in the partnership agreement which is the basis of arbitration proceedings and also the basis of the claim of the petitioner for seeking dealership for herself, no relief can be obtainable by the petitioner in view of the provisions contained in Section 42 of the Indian Partnership Act. It was emphasised that whatever was the dispute between aforesaid Major J.S. Bisht and the petitioner, that must be first resolved and so long that is not resolved, the ad hoc dealership of his client is fully protected by law.
Sri Asthana''s endeavour to protect the ad hoc dealership for his client is based upon total misconception of fact. The I.O.C. was bound by the aforesaid order of this Court dated 1551993 to consider the award and then decide the application of the petitioner. No such order has been passed by the I.O.C. rather Dr. R.G. Padia has very rightly said that because of pendency of some of�the matters, the I.O.C. could not writ more than saying that the ad hoc dealership was to continue. It may be mentioned here that the petitioner''s contention in some of the paragraphs are about attributing motive to I.O.C. officials in having gone out of way to support the ad hoc dealership of Jagdamba Petrol Pump, proprietorship of Lal Singh Tomar. There is no need and necessity to go into all these issues and it is appreciated that Dr. R.G. Padia drew the attention of this Court that the I.O.C. was at the stage of deciding the matter put because of various orders existing in the litigation referred to above could not finally do so. However, if a correct appreciation of the policy behind such allotment to Army personnel was kept in mind and the direction given in this Court''s order dated 1551993 were appreciated in pith and substance, there was no occasion to extend the ad hoc dealership of a private person relating to the petrol pump all table and allocable only to defence personnel.
laving held that the retail outlet at 16A, Transport Nagar, Kanpur is exclusively allocable to the defence personnel quota, it could not and should not be settled even on ad hoc basis with a private citizen such as Jagdamba Petrol Pump through its proprietor Lal Singh Ibmar. The aforesaid allotment is, therefore, hereby quashed.
It is hereby directed that within ten days from the date of filing of a certified copy of this order, the I.O.C. will decide the matter between the petitioner and Major J.S. Bisht for grant of ad hoc dealership only so long as the litigation concerning original award passed by the arbitrator appointed by the I.O.C. is not settled by the competent court. In view of that has been stated above, no further orders on the application under Article 215 and other allied applications, are necessary.
Since the writ petition of Naik Raj Bahadur Rathore contains the prayer that allotment of the retail outlet in the instant case should be allocated only in favour of Army personnel and such an order has already been passed, that petition has also to succeed.
In view of the aforesaid discussion, both the writ petitions are allowed with the directions given above. The parties shall bear the costs.
Let certified copy of this order be issued to learned Counsel for respective parties on payment of usual charges within a week. Petition allowed.