IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 13TH OCTOBER 2010 / 21ST ASWINA 1932 WP(C).No. 4664 of 2009(E) ------------------------- PETITIONER: --------------- JOSE P.P., S/O.LATE K.A.PETER, PANACHIKKAL HOUSE, KUNNOTH, KILIYANTHARA PO., KANNUR DISTRICT. BY ADV. SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON SRI.N.AJITH SRI.P.M.NEELAKANDAN RESPONDENTS: --------------- 1. THE SENIOR REGIONAL MANAGER, HINDUSTAN PETROLEUM CORPORATION LTD., BAIKAMPADY, NEW MANGALORE - 575 030. 2. THE REGIONAL MANAGER, HINDUSTAN PETROLEUM CORPORATION LTD., KANJIKKODE - 678 621. 3. THE CHAIRMAN, HINDUSTAN PETROLEUM CORPORATION LTD., MUMBAI - 400 020. 4. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF PETROLEUM AND NATURAL GAS, NEW DELHI. R1 TO R3 BY SHRI A.M. SHEFFIQUE, SR. ADVOCATE. ADV. SRI.E.K.NANDAKUMAR ADV. SRI.A.K.JAYASANKAR NAMBIAR SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS SRI.ANIL D. NAIR SRI.V.J.ANAND R4 BYADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR GENERAL ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.SOLICITOR GENERAL THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ORDERS ON ON 27/09/2010, ALONG WITH W.A. Nos 805 & 840 OF 2008 AND W.P. (C) NO. 21265 OF 2008, THE COURT ON 13/10/2010 DELIVERED THE FOLLOWING: J. CHELAMESWAR, CJ & P.R. RAMACHANDRA MENON, J. .............................................................................. W.P.(C) No. 21265 OF 2008, W.A.Nos. 805 AND 840 OF 2008 & W.P.(C) No. 4664 OF 2009 ......................................................................... Dated this the 13th October, 2010 J U D G M E N T P.R. Ramachandra Menon, J. : All these cases revolve around the same cause of action with regard to the right to conduct an LPG Dealership in the area in question and hence are being considered together. For the purpose of convenience of reference, the factual position and documents as narrated in W.A.No. 805 of 2008 are being adverted to. The sole legal question to be considered is whether the 'Agency' survives after the death of the agent. A brief appreciation of factual position may also be required in this context. 2. The respondent Corporation (hereinafter referred to as HPCL in short) granted an LPG Distributorship in Kottayam- Malabar in Kannur district under the 'Freedom Fighters' category -Women', in favour of one P.A. Mariamma (father's sister of the W.P.(C) No. 21265 OF 2008, W.A.Nos. 805 AND 840 OF 2008 & W.P.(C) No. 4664 OF 2009 2 petitioner in W.P.(C) 4644 of 2009/ appellant in W.A No. 840 of 2008 and father-in-law's sister of the appellant in W.A.No.805 of 2008). Smt. Mariamma executed Ext.P26 agreement with the HPCL on 30.03.2002 and the agency/distributorship was started in the name and style as 'Panachikkal Gas Agency”. However, shortly after commencement of the distributorship as above, the agent/dealer Mariamma unfortunately bid farewell to this world on 21.10.2003, under which circumstance, some arrangement was made by the HPCL permitting the appellant in W.A.No. 805 of 2008 (hereinafter referred to as 'legatee') to continue the arrangement for the time being. 3. After the death of Mariamma/dealer, her daughter-in- law by name Isabel V. Thomas applied for re-constitution of the agency in her name on 03.11.2003, contending that the deceased Mariamma had executed a registered 'Will' bearing No.56/02 dated 25.02.2002 of the SRO, Uliyil in her favour. Thereafter it was brought to light that the deceased Mariamma had also executed a 'Codicil' dated 12.07.2003 in favour of the appellant in W..A.No.805 of 2008 (legatee ), who was another W.P.(C) No. 21265 OF 2008, W.A.Nos. 805 AND 840 OF 2008 & W.P.(C) No. 4664 OF 2009 3 daughter-in-law. Accordingly, she applied for re-constitution of the distributorship in her name on 17.12.2003. Since her application was not considered, the 'legatee' approached this Court by filing W.P.(C)No.37845 of 2004 and during the pendency of the Writ Petition, the agency was terminated on 29.12.2004 as per Ext.P4. Pursuant to the interim order passed by this Court, directing to consider the representation of the petitioner/legatee, the same was considered and rejected by HPCL as per Ext. P7, which made the petitioner/legatee to amend the Writ Petition. After hearing the Writ Petition, Exts.P4 and P7 (produced in the above Writ Petition as Exts.P9 and P11) were set aside and the matter was directed to be considered in the light of Ext.P2 Will/Codicil executed by the deceased Mariamma. 4. Aggrieved by the judgment, the HPCL took up the matter in appeal by filing W.A.No.753 of 2005, challenging the impugned orders (Exts.P9 and P11 therein). After hearing, the Division Bench held that there was nothing wrong in rejecting the representation seeking to re-constitute the distributorship in W.P.(C) No. 21265 OF 2008, W.A.Nos. 805 AND 840 OF 2008 & W.P.(C) No. 4664 OF 2009 4 the name of the legatee. Accordingly, Ext. P8 judgment rendered by the learned Single Judge was set aside as per Ext. P9 judgment rendered by the Division Bench on 15.06.2005, however, making it clear that, it was open to the HPCL to consider the request of the writ petitioner in accordance with the rules, if there was no objection for other legal heirs, with regard to which, no opinion was stated as expressed. 5. After passing the above verdict by the Division Bench, the representation preferred by the legatee/writ petitioner was considered and rejected by the HPCL as per Ext. P10. Thereafter, she filed Ext. P11 representation, which was directed to be considered by a learned Single Judge of this Court vide Ext. P14 judgment and the same was also rejected by the Company as per Ext. P15 giving reasons. According to the legatee, she was entitled to have the distributorship re-constituted in her name, particularly in the light of the revised guidelines as borne by Ext. P16 dated 17.11.2005, which made her to approach this Court again by filing W.P.(C) 18351 of 2006. This was dismissed as devoid of any merit as per judgment dated 22.02.2008 by the W.P.(C) No. 21265 OF 2008, W.A.Nos. 805 AND 840 OF 2008 & W.P.(C) No. 4664 OF 2009 5 learned Single Judge, which is under challenge in W.A.No. 805 of 2008. 6. Incidentally, it is relevant to note that after rejecting the application preferred by the legatee, the HPCL had proceeded with further steps for allotting distributorship by inviting applications from other eligible hands under the very same category, i.e., 'Freedom Fighters' category-Women', in view of the fact that the legatee/Celenamma, who had filed the earlier proceedings was not admittedly the legal heir of the deceased Mariamma and further since the guidelines issued by the Ministry of Petroleum for re-constitution of the distributorship provided such re-constitution only with a 'legal heir' and not with any legatee. 7. The nephew of the deceased Mariamma, by name P.P. Jose ( who is of course a legal heir of the deceased Mariamma under Section 47 of the Indian Succession Act) preferred a claim before the HPCL in the year 2008, seeking to have the distributorship re-constituted with him, as legal heir of the deceased. Seeking for appropriate reliefs, he approached this W.P.(C) No. 21265 OF 2008, W.A.Nos. 805 AND 840 OF 2008 & W.P.(C) No. 4664 OF 2009 6 Court by filing W.P.(C) 7965 of 2008 which was disposed of as per the judgment dated 01.04.2008 passed by the learned Single Judge directing the respondents/HPCL to have it considered in accordance with law, without expressing anything on merits. Contending that the learned single Judge did not intercept with the steps being pursued by the HPCL to give fresh allotment inviting applications from other eligible persons in the Freedom Fighters' quota -Women category, W.A.No. 840 of 2008 was filed by the said petitioner seeking for immediate intervention and appropriate reliefs. 8. While so, another person styled as a public spirited citizen and a consumer of LPG in the locality approached this Court by filing W.P.(C) 21265 of 2008 on stoppage of existing distributorship granted by the HPCL to the deceased Mariamma, who was running the agency as 'Panachikkal Gas Agency'. It is contended that no steps are being taken to appoint or re-appoint a distributor in the area and that, due to acute shortage of cooking gas, irreparable loss and hardships are being caused to the residents of the locality, which hence is sought to be W.P.(C) No. 21265 OF 2008, W.A.Nos. 805 AND 840 OF 2008 & W.P.(C) No. 4664 OF 2009 7 interfered ( also showing the appellant in W.A.No.805 of 2008 in the party array as the second respondent). 9. Despite the notification and further steps to appoint a fresh distributor in the area, under the same 'Freedom Fighters' category-Women', no eligible hand could be identified, under which circumstance, the HPCL proceeded with steps to notify the same under 'Open ' category, after getting sanction to have it de-reserved. This made the appellant in W.A.No. 840 of 2008 to file a fresh Writ Petition as W.P.(C)No.4664 of 2009 challenging such steps. 10. As mentioned hereinbefore, the basic issue involved is, whether there is any 'vested right' for the appellants in the concerned Writ Appeals to contend that the distributorship is liable to be re-constituted in the name of either of them, in tune with the guidelines issued by the Ministry or whether the HPCL is justified in having rejected their claims and proceeded with steps for 'open selection' particularly when no eligible hand could be identified in the reserved category of 'Freedom Fighters- Women' in spite of calling for application in this regard. W.P.(C) No. 21265 OF 2008, W.A.Nos. 805 AND 840 OF 2008 & W.P.(C) No. 4664 OF 2009 8 11. Shri S.V. Balakrishna Iyer, the learned Sr. Counsel appearing for the petitioner in W.P.(C) 4664 of 2009 and W.A.No. 840 of 2008 as well as Mr. A.A. Abul Hassan, the learned Counsel appearing for the appellant in the other appeal submitted that there was no conflict of interest between the appellants in the concerned appeals and that both of them claimed under the original deceased dealer by name Mariamma; the claim of the appellant in W.A.No. 805 of 2008 being as a 'legatee', while the claim of the appellant in the other case being as a 'legal heir' under Section 47 of the Indian Succession Act. The learned Counsel submitted that either of them is to be granted LPG Distributorship, in view of the rights and liberties to have the same reconstituted under the relevant norms and also in view of the fact that the deceased dealer had effected substantial investments of nearly Rs.20 Lakhs for providing necessary infrastructure for the dealership/distributorship and that there is no rhyme or reason for proceeding with the steps for effecting selection from the open market, more so in view of the various orders/directions W.P.(C) No. 21265 OF 2008, W.A.Nos. 805 AND 840 OF 2008 & W.P.(C) No. 4664 OF 2009 9 issued by this Court at different points of time to have the claims/representations considered in this regard. 12. Mr. Iyer also submitted that termination of the dealership ordered by the HPCL as per Ext.P4 and the rejection of the representation/claim ordered to be considered as per Ext.P6 interim order have already been set aside by a learned Single Judge of this Court in Ext.P8 Judgment (produced in W.A.No. 805 of 2008). Though the said verdict was challenged at the instance of the HPCL, interference was made by the Division Bench of this Court, only with regard to Ext. P7 order rejecting the representation (produced as Ext. P11 therein) upholding the same as per Ext. P9 judgment, while the setting aside of the other order ie. Ext.P4 (produced as Ext.P9 therein) regarding termination of the Agency is left in tact. As such, it is contended that the Distributorship is liable to be assigned in favour of the appellant in W.A.No.840 of 2008 (petitioner in W.P. (C) 4664 of 2009), if the appellant in the other appeal ( legatee ) is not a 'legal heir' coming within the purview of the norms. W.P.(C) No. 21265 OF 2008, W.A.Nos. 805 AND 840 OF 2008 & W.P.(C) No. 4664 OF 2009 10 13. Mr. A.M. Shaffique, the learned Sr.Counsel appearing for the HPCL submitted that the contentions raised by the appellants do not have any merit or bonafides and that there is no duty or liability for the said respondent Company to grant dealership/Distributorship in the name of either of the appellants. The Distributorship has been validly terminated pursuant to the death of the original dealer by issuing Ext. P4 and that the claim of the legatee had been rejected as per Ext. P7 which are stated as perfectly within the four walls of the law and not assailable under any circumstances. The learned Sr. Counsel also submits that the appellant in W.A.No. 805 of 2008 is never a 'legal heir', though she is a 'legatee' of the deceased dealer and as such, she does not come within the purview of the relevant guidelines issued by the Ministry. It is in the said circumstance, that the appellant in the other appeal has put forth a claim in the year 2008, i.e. nearly 'five' years after the death of the original dealer and as such, the said claim is rather stale in all respects and is not liable to be considered. 14. With regard to the eligibility of the appellant in W.P.(C) No. 21265 OF 2008, W.A.Nos. 805 AND 840 OF 2008 & W.P.(C) No. 4664 OF 2009 11 W.A.No.805 of 2008, the admitted case of the appellant is that she is the daughter-in-law of the deceased dealer and a 'legatee' as per the 'Codicil' executed by the deceased during her life time. In other words, there is no case for the said appellant that she is a 'legal heir' of the deceased dealer. Since re- constitution of the dealership, as per the guidelines issued by the Ministry, specifically contemplates such re-constitution only among the 'legal heirs' as specified and since the 'legatee' is not a 'legal heir' and further since that the said appellant is claiming the rights only on the basis of the 'Codicil', her claim stands outside the purview of the relevant norms and hence no positive relief can be given to her with regard to her claim for granting Distributorship. 15. The nature of Dealership/Distributorship is obviously a matter of agency and the Agent is chosen by the Principal. It is settled law that the agency comes to an end on the death of the agent, as it is a personal contract. (see Bowstead & Reynolds on the Law of Agency, 2006 Edition. ). The learned Sr. Counsel appearing for the appellant in W.A.No.840 of 2008 and W.P.(C) No. 21265 OF 2008, W.A.Nos. 805 AND 840 OF 2008 & W.P.(C) No. 4664 OF 2009 12 W.P.(C)No. 4664 of 2009 also fairly conceded the above legal position, who, however asserted that there cannot be any dispute with regard to the status of the said appellant/petitioner, who is a 'legal heir' under section 47 of the Indian Succession Act and who comes within the purview of the notified guidelines issued by the Ministry, so as to have the dealership re-constituted. 16. But here, it has to be borne in mind that the death of the original dealer was on 21.10.2003 and no such claim was ever put forth by the above appellant/petitioner till the year 2008, which though was directed to be considered by a learned Single Judge of this Court, it happened to be rejected; followed by subsequent events. By the time, the said party woke up from the deep slumber, the respondent HPCL had already put an end to the existing arrangements and nothing survived further. That apart, as observed herein before, the agency since did not survive any further after the death of the agent, continuation of the dealership thereafter was only by way of a stop-gap arrangement, which also came to an end on issuing Ext.P4. The respondent Company had also pursued steps to see whether W.P.(C) No. 21265 OF 2008, W.A.Nos. 805 AND 840 OF 2008 & W.P.(C) No. 4664 OF 2009 13 any other eligible candidate under the 'Freedom Fighter-Women' category was available in the area and it was only on satisfaction of non-availability of any such eligible candidate, that the Company proceeded with further steps for open selection. This Court finds that the steps being pursued by the Company are not assailable either on facts or in law and the claim of the appellant in W.A.No.840 of 2008 (and the petitioner in W.P.(C) No.4664 of 2009), projecting himself as a 'legal heir' of the deceased nearly after 5 years of the death of the original dealer/distributor for having the dealership/distributorship re-constituted in his name, is not liable to be entertained. There is no vested right for either of the appellants to have the Distributorship re-constituted in their name based on the materials on record. 17. In the above circumstances, this Court finds that interference was rightly declined by the learned Single Judge by dismissing the Writ Petition. None of the grounds raised in the Writ Appeal does serve its purpose. Accordingly both the Writ Appeals are dismissed. In view of the fact that the W.P.(C) No. 21265 OF 2008, W.A.Nos. 805 AND 840 OF 2008 & W.P.(C) No. 4664 OF 2009 14 respondent Company is proceeding with further steps to have open selection for a fresh dealer and appropriate alternate arrangements are stated as made, not to interrupt the supply in the above area, no further orders are necessary in W.P.(C)21265 of 2008. In the said circumstance, interference is declined in the said case as well. All the above cases are dismissed accordingly. J. CHELAMESWAR, CHIEF JUSTICE. P.R. RAMACHANDRA MENON, JUDGE. lk