(1) Ghanshyam Choudhary Vs. Indian Oil Corporation Ltd. & Others IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : O R D E R : S.B. Civil Writ Petition No.2542/2008. (Ghanshyam Choudhary Vs. Indian Oil Corporation & Others) DATE OF ORDER : October 21, 2008 P R E S E N T Hon'ble Mr. Justice Gopal Krishan Vyas _______________________________ Mr. M.C. Bhoot for petitioner. Mr. Jitendra Chopra for the respondent(s). BY THE COURT : Heard learned counsel for the petitioner. In this writ petition, the petitioner has challenged the show cause notice Annex.-5. The said show cause notice was issued to the petitioner by respondent No.2 and a prayer has been made by the petitioner to quash Annex.-5 and to restrain the respondents from taking any action in furtherance of the show cause notice. On 21.04.2008 when this writ petition was listed in the Court, the respondent company filed caveat and prayed for time to file reply. Thereafter, for one or another reason, the case was adjourned and not finally heard. However, after filing of (2) Ghanshyam Choudhary Vs. Indian Oil Corporation Ltd. & Others reply to the show cause notice by the respondent, without waiting for the adjudication either on the stay application or upon the writ petition, another show-cause notice was given to the petitioner by the respondent company. But, due to pendency of this writ petition, no reply was filed by the petitioner. Therefore, in the absence of any reply to the subsequent notice, the respondent Company passed order an Annex.-10 dated 24.06.2008 for cancellation of the dealership. After cancellation, learned counsel for the petitioner filed an application before this Court and apprised that during the pendency of the writ petition though the matter was under consideration before this Court but in hasty manner the matter has been decided finally by the respondent company and dealership has been cancelled which is illegal because matter was subjudice before this Court. Upon the application filed by the petitioner, this Court passed the following order on 18.07.2008 upon application : “Though listed in Court No.4, learned counsel for the petitioner made a mention stating urgency and learned counsel for the parties were heard at length in relation to IA No.7368/2008. Today, learned counsel for the petitioner has filed an application (IA No.8575/2008) seeking to produce a copy of the reply dated 16.04.2008. Learned counsel Mr. Jitendra Chopra appearing for the respondents has no objection thereto; and the said document is taken on record (marked by the petitioner as Ex.12). (3) Ghanshyam Choudhary Vs. Indian Oil Corporation Ltd. & Others Briefly put, the relevant aspects of the matter for the purpose of this order are that the petitioner, a dealer of the respondent-Indian Oil Corporation for distribution of Liquified Petroleum Gas (LPG), was served with a notice dated 31.03.2008 proposing to terminate the dealership. According to the petitioner, he received a photstat of the notice on 09.04.2008 and then received the original notice by registered post on 12.04.2008. The petitioner filed this writ petition on 16.04.2008 while raising various grounds against the said notice and with further submissions that the notice was an illusory one and the respondents having taken decision to terminate his dealership, filing of reply thereto would have been a futile exercise. It is noticed from the record that a caveat was lodged in this matter by the respondents on 08.04.2008; the petition was listed before the Court for the first time for consideration on 21.04.2008 and counsel appeared for the respondents in caveat and, while counsel for the petitioner was directed to supply a copy of the petition, the matter was adjourned to be taken up on 29.04.2008. The respondents filed a reply to the writ petition on 28.04.2008. On 29.04.2008, counsel for the petitioner prayed for and was granted a week's time to file rejoinder. The matter was thereafter taken up on 08.05.2008 and counsel for the petitioner again prayed for and was granted further two weeks' time to file rejoinder. In the meantime, the petitioner received a notice from the respondents on 07.05.2008. The said notice has been placed on record with the present application as Ex.8. On 29.05.2008, this writ petition was wrongly listed before a Division Bench of this Court and the Office was directed to list the matter appropriately. The petitioner did file his rejoinder on 29.05.2008. Thereafter, the office fixed the next date of 04.07.2008 but before that, on 28.06.2008, the petitioner moved an application (IA No.7187/2008) with the submissions that although there was an oral undertaking given in the matter on behalf of the (4) Ghanshyam Choudhary Vs. Indian Oil Corporation Ltd. & Others respondents that till the matter was heard for interim relief, no action would be taken by them, yet they had decided to take possession of his business by 28.06.2008 by cancelling his dealership; and it was prayed that the matter may be taken up at an earliest. The said application came up for consideration before the Court only on 01.07.2008 and this Court found that the application could not be dealt with during summer vacations and ordered the matter to be taken up only on the date fixed by the office i.e., 04.07.2008. Thereafter, the petitioner moved the present application (IA No.7368/2008) on 02.07.2008. While placing on record the said notice dated 02.05.2008 (Ex.8), the petitioner has referred to his reply dated 14.05.2008 (Ex.9) whereby he informed the respondents of pendency of the writ petition and also stated about an undertaking having been given on their behalf; and has pointed out that the respondents proceeded to pass an order on 24.06.2008 (Ex.10) terminating his dealership and then proceeded to take over possession of goods and material and relevant registers etc. on 28.06.2008 (Ex.11). The petitioner has prayed in this application that the actions taken by the respondents on 28.06.2008 be annulled and the status as was obtainable on 27.06.2008 may be restored. Learned counsel Mr. Jitendra Chopra appearing for the respondents had earlier filed his own affidavit on 01.07.2008 with the assertion that no any undertaking was stated before the Court. The respondents filed a reply to the present application (IA No.7368/2008) and, while opposing the application, submitted that no undertaking was stated before the Court and no stay was granted in the matter and, on the contrary, reply was filed on 28.04.2008 and thereafter it was on the part of the petitioner that time was taken continuously for filing of the rejoinder. It is maintained that the respondents have proceeded in accordance with law and the competent authority has passed the order after following due procedure prescribed by law. It is also suggested that termination order so passed has not been challenged by amending the writ petition and the writ petition as presently existing deserves to be dismissed; and, (5) Ghanshyam Choudhary Vs. Indian Oil Corporation Ltd. & Others according to the respondents, unless and until termination of dealership is challenged in accordance with law in separate proceedings, no relief could be granted to the petitioner. Learned counsel for the petitioner has referred to the state of record and submitted that the action of the respondents in passing the order on 24.06.2008, despite being aware of pendency of this writ petition and despite having been made further aware about the undertaking extended on their behalf and about the matter being sub judice, had only been an attempt to over-reach the process of law and such an order being directly contrary to the fundamental requirements of not disturbing the status obtainable during pendency of the litigation, deserves to be annulled. Learned counsel for the respondents has opposed with the submissions that when adjournments were taken on behalf of the petitioner to file rejoinder and the matter thus remained pending and when no such undertaking was stated as alleged, the respondents have rightly passed the order in question. Learned counsel for the respondents also attempted to refer to the merits of the case to submit that there had been serious complaints against the petitioner and hence, the respondents were justified in passing the order impugned. During the course of submissions, in response to the query of this Court, an affidavit of Dy. Manager Sales (LPG), Indian Oil Corporation, Jodhpur has been placed on record stating that after termination of dealership of the petitioner, dealing of the relevant consumers who were earlier with the petitioner had been distributed amongst four other Gas Agencies in the City of Jodhpur and alternative arrangements have been made for such consumers. On the part of the petitioner also, another application (IA No.8477/2008) has been filed with a photostat of the press note dated 07.07.2008 and a copy of daily newspaper 'Dainik Bhaskar' dated 08.07.2008 and so also a chart showing the distance of the concerned areas related with different consumers from the location of the petitioner's office and the offices of the other Gas Agencies to whom the said consumers (6) Ghanshyam Choudhary Vs. Indian Oil Corporation Ltd. & Others have been transferred. So far stating of an undertaking on behalf of the respondents is concerned, this Court would not like to enter into this aspect of the matter any further only for the reason that the counsel appearing for the respondents has chosen to file his own affidavit asserting that no such undertaking was stated before the Court. However, and whether any undertaking was stated or not, having regard to the subject matter of dispute, when the respondents were definitely aware of the fact that the matter was sub judice before the Court and they had put in appearance in the matter and then, the matter was lastly adjourned on 29.05.2008 when it was wrongly listed before a Division Bench of this Court instead of appropriate Single Bench and next date was fixed as 04.07.2008; even if the petitioner had earlier sought adjournments, the fact remains that rejoinder was filed on 29.05.2008 and till that date, nothing was done by the respondents and the petitioner, by sending a reply on 14.05.2008 (Ex.9), again made a request that the order be not passed for the matter being sub judice before the Court. If the respondents yet found that an order was required to be passed in the matter, this Court is of opinion that in the first place nothing prevented them from bringing it to the notice of the Court that such an action was proposed to be taken and secondly, when the matter was otherwise to come up before the Court on 04.07.2008, the respondents could definitely have waited till that date. The action of the respondents in passing the impugned order dated 24.06.2008 and then having the same implemented also despite being aware of the fact that the matter remains sub judice before the Court cannot be countenanced irrespective of the merits of the case of the petitioner. The proposition as stated by the respondents in the reply to the application that for such an order having been passed by them, now, the cause as stated in the writ petition could not be proceed further only confounds the issue. The respondents are not entitled to bring about a situation of altering the subject matter of the petition and could least be acceded the right to suggest that the matter is rendered infructuous (7) Ghanshyam Choudhary Vs. Indian Oil Corporation Ltd. & Others because of something done by them. To maintain the rule of law, this Court is of opinion that the respondents cannot be acceded the right to contend that this petition be treated as infructuous only because of their passing of the order dated 24.06.2008 and, for that matter, to avoid any incongruity, the effect of the order dated 24.06.2008 deserves to be stayed from this date. This Court has pondered over the question if status quo ante be ordered in entirety. However, it is noticed that the matter does not remain confined only to the petitioner and the respondents but, as pointed out during the course of submissions, the petitioner had about 17,000 consumers with him who have been transferred to different agencies. Though it has forcefully been argued by learned counsel for the petitioner that by restoring status quo ante, the consumers would not be put to any difficulty because, as noticeable from the press note dated 07.07.2008, the delivery points wherefrom the gas cylinders were being supplied by the petitioner have been retained by the respondents and, therefore, the petitioner may be allowed to continue with his business, but this Court is unable to agree with such submissions of learned counsel for the petitioner. It is noticed from the material placed on record that from 02.07.2008 onwards, such consumers have been informed by various news items and advertisements that they stand transferred to different Gas Agencies. Making any order in alteration of such a position now and at this stage is likely to cause serious trouble to such consumers who have otherwise nothing to do with this litigation between the petitioner and the respondents but who are definitely dependent on the supply of gas cylinders. There is another noteworthy aspect of the matter that this petition is even otherwise to be heard for admission and from the record of proceedings as available, it appears that earlier, the matter was adjourned only for reply and rejoinder etc. but then, this Court has never heard this petition even primarily to find if any prima facie case is made out by the petitioner or not. Looking to the overall circumstances of the case, this (8) Ghanshyam Choudhary Vs. Indian Oil Corporation Ltd. & Others Court is clearly of opinion that while the respondents cannot be permitted to suggest that the cause in the writ petition be treated as infructuous only because of something done by them during pendency of the writ petition, but beyond that no mandatory order is required to be passed at this stage because, as noticed above, the matter would have effect on the consumers who should not be put to trouble because of this litigation between the petitioner and the respondents and then, because the matter is yet to be heard for admission. Therefore, while staying effect of the order passed by the respondents on 24.06.2008 (Ex.10) from this date, it is considered appropriate that otherwise status quo as it exists today be continued and the matter be placed for admission at an early date. Ordered accordingly. In the interest of justice, the aforementioned interlocutory applications are not finally disposed of and are kept pending for consideration at the time of consideration of the petition for motion-admission. List this matter for admission on 23.07.2008, as prayed for and agreed to by the learned counsel for the parties.” Today, this case is listed for admission. In my opinion, once the matter was under adjudication before this Court upon the writ petition filed by the petitioner against the show cause notice, then, the respondent company was required to wait for adjudication either on the stay application or final decision of the case. But, without waiting for adjudication the matter was finally decided by the respondent company on 24.06.2008 (Annex.-10) which is not proper because the petitioner was not supposed to give any answer to any subsequent notice because the initial (9) Ghanshyam Choudhary Vs. Indian Oil Corporation Ltd. & Others show cause notice was under challenge before this Court. Meaning thereby, without any reply and while observing in the order that the petitioner has not filed any reply to the second show cause notice, termination of the dealership has been ordered, therefore, the action of the respondents is against the principles of natural justice because, at least, the respondent company was under obligation to wait for adjudication in this writ petition. In this case, admittedly the petitioner is challenging the show cause notice in which he has been granted opportunity to file his reply but during the pendency of this writ petition the caveator company though filed reply to the writ petition but without waiting for the adjudication in the writ petition issued fresh show cause notice to the petitioner and decided the matter. Therefore, in the peculiar facts of this case speaking that the respondent's action in passing order of termination of the dealership is contrary to law. In this view of the matter, order passed by the company during the pendency of the writ petition for termination of the dealership does not survive and the matter is required to be decided by the respondents afresh after providing opportunity of hearing to the petitioner. (10) Ghanshyam Choudhary Vs. Indian Oil Corporation Ltd. & Others In view of the aforesaid, order impugned Annex.-10 dated 24.06.2008 is quashed and set aside. The respondents are directed to decide the matter afresh. The petitioner is also directed to file reply within 15 days. Upon filing of the reply by the petitioner, the respondents shall decide the matter within one month thereafter. However, if any adverse order will be passed by the respondent company, then, the petitioner is at liberty to challenge the same in accordance with law. The respondents are directed to give breathing time to the petitioner for challenging the said order. With aforesaid direction, the writ petition is disposed of. (Gopal Krishan Vyas) J. Ojha, a.