IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.17158 of 2007 RAHUL VIBHUSHAN, son of Sri Kailash Bihari Choudhary, resident of village and P.O. Bhagatpur, P.S. Balia, District- Begusarai…. Petitioner Versus 1. INDIAN OIL CORPN.LIMITED, having registered office at Indian Oil Bhavan, G-9, Ali Yavar Jung Marg, Bandra (East), Mumbai-400051, through its Chairman. 2. The Deputy General Manager (RS), Indian Oil Corporation Ltd., Indian Oil Bhavan G-9, Ali Yavar Jung Marg, Bandra (East), Mumbai-400051. 3. Indian Oil Corporation Ltd. Marketing Division, Maurya Lok Complex, 3rd Floor, Dak Bunglow Road, Patna-800001, through its Chief General Manager. 4. The General Manager, Indian Oil Corporation Ltd., Marketing Division, Maurya Lok Complex, 3rd Floor, Dak Bunglow Road, Patna-800001. 5. Tfhe Chief Divisional Managerr, India Oil Corporaztion Ltd, (Marketing Division), Maurya Lok Complex, Patna-800001. 6. The Deputy General Manager, Indian Oil Corporation Ltd. Maurya Lok Complex, 3rd Floor, Dak Bungalow Road, Patna-800001. 7. The Sales Manager, Retail Sales Division, Indian Oil Corporation Ltd. (Marketing Division), B-70, I.O.C. Campus, Begusarai-851211. 8. The Union of India, through the Secretary, Ministry of Petroleum and Natural Gas, Shastri Bhavan, New Delhi -110001. 9. The Under Secretary to Govt. of India, VIP Cell, Ministry of Petroleum and Natural Gas, Shashtri Bhawan, New Delhi-110001. 10. M/s. Farm and Auto Fuels ( I.O.C. Dealer), N.H.31, Lakhminia, p.s. Balia, District- Begusarai,through its proprietor, namely, Sri Manoj Agrawal, son of Dr. K.D.N.Agrawal, resident of Mungerigaznj, P.O./P.S./Distt.-Begusarai.. Respondents. --- For the petitioner: Mr. Siyaram Shahi,Advocate Mr. Sidhendra Narayan Singh,Advocate For Indian Oil Corporation: Mr. Anil Kumar Sinha,Advocate For Union of India: Mr. Binod Kumar, Central Government Counsel ----------- 9. 10.3.2010 Heard learned counsel for the petitioner and learned counsel for the respondent Indian Oil Corporation. The petitioner seeks quashing of the letter dated 15.11.2006 (Annexure-5) issued by the Chief Manager (RS) for the Deputy General Manager ( RS) Indian Oil Corporation Ltd. addressed to the Under Secretary, Government of India, Ministry of - 2 - petroleum and Natural Gas informing him that in terms of the new policy dated 29.12.2005 since the dealership of Manoj Agrawal remained inoperative for more than three years and prior to 1.4.2002, hence, the same is required to be terminated after issuance of show cause notice, and that stipulations of new guidelines have also been explained to Sri Manoj Agrawal ( respondent No.10 ). Further prayer has been made to command the respondents to complete the remaining formalities for revival of retail outlet, M/s. Farm and Auto Fuels, N.H.31, Lakhminia (Begusarai) and other consequential reliefs. Respondent No.10, Manoj Agrawal, was a proprietor of M/s. Farm and Auto Fuels, N.H.31, Lakhminia (Begusarai) and being dealer of Indian Oil Corporation Ltd. since 1976 was running a retail outlet for sale of petroleum products. The said Manoj Agrawal, on account of lack of men and financial power and weak health, approached the petitioner for active and strong support through his men and financial power in running the said retail outlet to which the petitioner agreed and a request letter dated 4.7.2003 was sent to the respondent I.O.C. at its office at Patna seeking - 3 - permission for reconstituting/ reorganizing the firm by inducting the petitioner for better business as a new partner. Under the new proposed partnership the said Manoj Agrawal was to retain 51 per cent share in the profit and loss, while the petitioner was to have the remaining 49 per cent. Along with the said letter, the necessary documents were enclosed. Thereafter again by letter dated 7.12.2004, of Manoj Agrawal, proprietor of the Firm, addressed to Sales Manager, Retail Sales Division Indian Oil Corporation Ltd. ( Marketing Division), Begusarai, it was stated that since the matter has been shifted to the said office he was again making the request, referring to his previous application dated 4.7.2003 submitted to its office at Patna, praying for permitting the induction of a new partner. In the meantime, the land with structure thereon of the retail outlet, which was earlier in the name of the wife of Manoj Agrawal and given to the retail outlet on lease, was transferred in favour of the petitioner through registered sale deed dated 3.3.2005 for a consideration of Rupees three lacs in order to create sincere interest of the petitioner in the said business and further - 4 - to satisfy the respondent-I.O.C. so as to grant approval for reconstitution/reorganization of dealership of retail outlet for its revival. Again on the basis of suggestions for making certain changes in the proposal by the respondent- I.O.C. another request letter dated 13.8.2005 was submitted on 26.8.2005 before the Sales Manager, Begusarai, respondent No.7 fulfilling all the conditions and requirements as were then necessary for reorganization/reconstitution of the dealership by inducting one business partner for getting support of men and financial power. The Field Officer of I.O.C. visited the site in September, 2005 and recommended the case for revival of the retail outlet. On 9.12.2005, the petitioner was informed by the respondent-IOC that the request for his induction as partner has been approved by the respondent No.4, General Manager, IOC, who was the competent authority for the said purpose. Again on 18.12.2005, the petitioner was directed to attend the interview on 10.1.2006 for completing the formality for re-constitution and revival of retail outlet but the said interview could not be held on account of absence of the Deputy General - 5 - Manager. Thereafter the petitioner was directed to appear for interview on 27.1.2006, but the same was also adjourned on account of failure of one of the officers of the I.O.C. to turn up. The petitioner kept on pursuing the matter with the authorities of the I.O.C. and also filed his representation before the Petroleum Ministry. Ultimately, the petitioner received a copy of the impugned letter dated 15.11.2006 (Annexure-5) by which it was communicated that revival of the said retail outlet is not possible in view of the new policy decision dated 29.12.2005. The said guidelines of the Government of India dated 29.12.2005 state as follows: “Dealerships/Distributionships which are inoperative from a date prior to 1.4.2002 will not be considered for revival. Further Dealerships/ Distributionships remained inoperative for a period of more than three years will not be revived.” The admitted position is that respondent No.10 had continued to operate the dealership till - 6 - March, 2002 and thereafter no indents for supply were made on its behalf. Learned counsel for the petitioner also relies upon a letter dated 14.12.2007 sent by the Indian Oil Corporation Ltd. Marketing Division by the General Manager, Retail Sales addressed to the Ministry of Petroleum and Natural Gas, in paragraph No.4 of which it has been stated that the Industry understanding in the matter was discussed in the meeting held on 29.8.2007 at MOP & NG and the same was also communicated by BPC on behalf of Industry vide letter Ref.RSHQ:POLICY dated 12.11.2007, as per which the subject Ministry guidelines are applicable in cases involving revival of terminated dealerships and in other cases where dealership agreement is valid, no approval is required for re-activation of sales. However, the said stand has not been accepted by the Government of India and by letter dated 10.9.2008 it has been stated that R.O. dealerships that have been lying inoperative from a date prior to 1.4.2002 and those that have been inoperative for more than three years cannot be revived, hence, it was not possible to accede to - 7 - the request at that stage. Learned counsel for the petitioner submits that the authorities of the Inian Oil Corporation as also the Government of India have acted in a whimsical and arbitrary manner in the present case. It is urged that taking into account the fact that earliest request for re-constituting/re- organizing the Firm by inducting the petitioner as a partner was made on 4.7.2003 and subsequently reiterated on 7.12.2004, which facts have not been denied, and thereafter only on the basis of suggestions received from the officials of the respondent-I.O.C. the amended proposal was made on 13/26.8.2005, the submission of the subsequent proposal cannot in any view of the matter be considered as though the proposal itself is of the subsequent date rather the same must be treated as in continuance of the first proposal made on 4.7.2003. It is further contended that the only rationale for the new policy guidelines which came into effect from 29.12.2005 for excluding the Retail Outlet which had become inoperative prior to a date from 1.4.2002 or which had remained inoperative for more than three years was to - 8 - exclude such closed down retail outlet which had become stale and old; but that was not the position with respect to the petitioner, as the first application was made about 15 months from the last operation conducted in the month of March, 2002. In that view of the matter, it was not open to the respondent-authorities to have denied the petitioner the benefit of reconstitution/reorganization on the basis of the guidelines dated 29.12.2005, which could not have been applied when an application was pending from 4.7.2003 and any delay in deciding the matter was only on account of the inaction of the respondent- authorities and the same cannot be used against the petitioner. It is further submitted by learned counsel that on all the dates, namely, 4.7.2003, 7.12.2004 and 13/26.8.2005, the petitioner was eligible and was found suitable and recommended accordingly by the officials of the Indian Oil Corporation and only on account of the delay in taking interview the matter did not reach final conclusion and a new policy guideline came into effect. It is urged that in the said circumstances the request of the petitioner ought not to have been refused and the - 9 - reconstitution and revival of the Retail Outlet ought to have been permitted. Learned counsel for the Indian Oil Corporation, on the other hand, submits that the authorities have not at all acted in an arbitrary or whimsical manner rather they have acted in terms of the policy decision laid down by the Government of India. It is submitted that the respondent-officials of the Indian Oil Corporation at all stages sought to support the case of the petitioner and as late as in the year 2007 after the case of the petitioner had been rejected, they have written to the Government of India in favour of the petitioner, which has not been accepted by the Ministry of Petroleum and Natural Gas and thus they are helpless in the matter and no blame can be thrown upon them. It is further stated by learned counsel that the proposal given on 13/26.8.2005 is to be treated as a fresh proposal which was complete with all the requirements and thus there was no delay on the part of the I.O.C. in looking into the application of the petitioner. On a consideration of the entire facts and circumstances and the submissions of the learned - 10 - counsels for the parties, this Court finds sufficient force in the submissions of learned counsel for the petitioner. There is no denial of the fact that earlier an application for reconstitution/reorganization of the Retail Outlet was made on 4.7.2007, which was reiterated by letter dated 7.12.2004 by respondent No.10. Only thereafter on the basis of certain suggestions received from the respondent Indian Oil Corporation authorities, the third application on 13/26.8.2005 was made. In the said circumstances, merely because there were some lacuna or deficiencies in the earlier application, it cannot be said that the respondent No.10 had not applied for reconstitution/reorganization of the Retail Outlet on 4.7.2003. The application dated 13/26.8.2005 ought to have been treated as one in continuance of the first application. In the said circumstances, nothing has been stated in the counter affidavit filed by the respondent-I.O.C. or the Union of India that the case of the petitioner was not fit for being allowed in terms of the policy/guidelines prevailing at the relevant time. Further this Court finds that even the - 11 - guidelines of 29.12.2005 has only fixed a cut off date of three years, excluding Retail Outlet which had become inoperational prior to a date from 1.4.2002 or which had ceased to carry on business for a period of more than three years. It is evident from the said policy/guidelines that the same was meant to prevent revival of stale and old closed Retail Outlet but in the present matter the application for reconstitution/ re- organization was made about 15 months after the Retail Outlet had stopped its operation and thus, in no case, it can be considered to be a stale and old case when the first application was made on 4.7.2003 and subsequently in continuance there of a reminder was given on 7.12.2004. This Court also cannot accept the submission of learned counsel for the respondent Indian Oil Corporation that there was no delay at the end of the Indian Oil Corporation. The first application having been filed on 4.7.2003 and repeated by reminder on 7.12.2004, there was no reason why so much delay has taken place in coming to a final decision in the matter. If there was any deficiency in the application of the petitioner, then the petitioner/respondent No.10 - 12 - should have been directed to rectify it within a reasonable time but the same has not been done and it is only on account of delay of nearly 2 ½ years that, in the meantime, new policy guidelines came into being under strict application of which the petitioner could have been excluded from the revival of Retail Outlet dealership. Such guidelines cannot be applied to the case of the petitioner in a highly technical manner since the case of the petitioner was pending with the authorities of the IOC for nearly 2 ½ years when such guidelines came into being and by considering the broad principle, on which the said policy /guidelines is based, the request of the petitioner ought to have been acceded to by the authorities. In the light of the aforesaid discussions, the writ application is allowed. The rejection of the claim of the petitioner by letter dated 15.11.2006 and the subsequent letter dated 10.9.2008 is set aside and the respondents are directed to complete the remaining formalities for revival of the aforesaid Retail Outlet within a period of two months from today. VPS ( Ramesh Kumar Datta, J. )