M/S. MASAURHI SERVICE STATION v. BHARAT PETROLEUM CORPORATION LTD. & ANR.

(xii) that since there was no pending Letter of Intent (LOI) holder under the social objective category in Delhi, the RO at Shanti Path was handed over to the petitioner which was an existing regular dealer of respondent No.1 BPCL, by way of resitement;

(xiii) that the aforesaid Ms. Rajni Goyal had filed a suit against the respondent No.1 BPCL and on account of pendency thereof, the RO at Shanti Path could not be advertised for dealership and the allotment thereof in favour of the petitioner was subject to the outcome of the Court case;

(xiv) that the respondent No.1 BPCL vide its letter dated 25th November, 2014 to the respondent No.2 MoPNG confirmed that the resitement of the petitioner from Azadpur to Shanti Path was in accordance with the guidelines;

(xv) that however suddenly on 24th February, 2015, without any notice, the respondent No.1 BPCL attempted to forcibly take possession of the Shanti Path RO from the petitioner and upon being unsuccessful therein stopped supplies of petroleum products to the RO of the petitioner at Shanti Path.

3. The petition came up first before this Court on 2nd March, 2015 when notice thereof was issued.

4. The respondent No.1 BPCL filed a counter affidavit pleading: (a) that the Licence Agreement dated 17th April, 2010 between the petitioner and the respondent No.1 BPCL contains an arbitration clause and the writ petition is not maintainable; (b) that under the licence agreement, the respondent No.1 BPCL has reserved into itself the right to take back the whole or any portion of the RO and / or the RO or to alter the same at any time during the continuance of the licence and at its sole discretion and that the RO shall always continue to be the property and in sole possession of the

(c) that the claim of the petitioner, a mere licensee, of possession of the property during the pendency of the licence is not maintainable; reliance in this regard is placed on Gesture Hotels and Food Pvt. Limited Vs. The New Delhi Municipal Council 210 (2014) DLT 359 and The Corporation of Calicut Vs. K. Srinivasan AIR 2002 SC 2051;

(d) that the petitioner thus does not have any enforceable right and the right of the petitioner to enter the RO at Shanti Path had come to an end on 24th February, 2015; (e) that vide letter dated 10th March, 2015, the Dealership Agreement dated 17th April, 2010 of the petitioner had also been revoked; (f) that it was the petitioner who was obstructing the operation of the said RO by the respondent No.1 BPCL; (g) that the respondent No.1 BPCL resited the petitioner from Azadpur to Shanti Path on a perception that the same was permissible under the policy; however such a perception of respondent No.1 BPCL was not found correct by the Chief Vigilance Officer (CVO) of the respondent No.1 BPCL who submitted a report to the respondent No.2 MoPNG with the observation that the petitioner, under the policy, could not have been resited at Shanti Path; (h) that the respondent No.2 MoPNG had vide its letter dated 25th February, 2015 to the respondent No.1 BPCL directed the cancellation of the resitement of the petitioner to Shanti Path;

(i) that the site at Azadpur is ready and operations can be carried out therefrom by the petitioner; (j) that since it was a case of recall / revocation of decision of resitement not in conformity with the policy / guidelines of the respondent No.2 MoPNG with the permissibility to the petitioner to commence operations at Azadpur, from where the petitioner had been operating prior to resitement at Shanti Path, there was no requirement to give any show cause notice or hearing, as the business relationship between the petitioner and the respondent No.1 BPCL continued; (k) that the resitement of the petitioner from Masaurih, Bihar to Azadpur, Delhi was effected in the year 2004 and not in the year 1999;

(l) that resitement of the petitioner from Azadpur to Shanti Path could not have been granted as the policy did not permit so;

(m) that as per the Guidelines dated 6th September, 2006 of the respondent No.2 MoPNG, the COCO RO at Shanti Path could be divested to pending LOI holders belonging to the categories of Operation Vijay-Kargil or Discretionary Quota Scheme or Corpus Fund Scheme (SC / ST category of dealerships, widows and women above 40 years of age without earning parents) or other categories as prescribed in the marketing plans and if none was available in any of the aforesaid categories, by advertising under normal process; (n) that since the petitioner had been resited at Shanti Path in contravention of the policy / guidelines, it was essential to correct the said mistake; (o) that the reliance by the petitioner in the petition on the letter dated 9th August, 2010 of the respondent No.2 MoPNG is misconceived as, as per the said letter itself the final decision was still to be taken.

5. The respondent No.2 MoPNG in its counter affidavit pleaded:

(i) that the supply and sale of petroleum products to the general public across the country is done by the Public Sector Oil Marketing Companies viz. Indian Oil Corporation Limited, BPCL and Hindustan Petroleum Corporation Limited through their duly appointed dealers and distributors; though the MoPNG does not interfere in the day-today affairs of the Oil Marketing Companies but has framed guidelines governing selection, resitement, reconstitution of the dealers and / or distributors so as to ensure transparency, uniformity and accountability and in case of any discrepancy or irregularity or violation in the implementation of the broad guidelines, directions are issued for taking corrective action;

(ii) that on examination of the complaints received and on the basis of the report of the CVO of the respondent No.1 BPCL, it was found that resitement of the petitioner by the respondent No.1 BPCL from Azadpur to Shanti Path was in blatant and gross violation of the extant policy / guidelines; it is believed that certain officials of the respondent No.1 BPCL flouted the guidelines so as to give undue favour to the petitioner on account of certain extraneous considerations;

(iii) that accordingly, the respondent No.2 MoPNG vide letter dated

25th February, 2015 read with corrigendum dated 25th February, 2015 directed the respondent No.1 BPCL to cancel the resitement of the petitioner from Azadpur to Shanti Path with immediate effect;

(iv) that in fact the resitement of the petitioner from Masaurih in

(v) that the RO at Shanti Path was originally allotted to M/s Rajnath

Motors whose dealership was terminated in the year 2001; M/s Rajnath Motors initiated litigation which is still pending adjudication;

(vi) that pursuant to the termination, the said RO was operated by the respondent No.1 BPCL as a temporary COCO which was managed by Ms. Rajni Goyal on labour contract basis and was managed by all women and which labour contract was terminated just before the resitement of the petitioner from Azadpur to Shanti Path;

(vii) that as per the Guidelines dated 6th September, 2006, temporary

COCOs were required to be phased out by handing over to pending LOI holders in the order of priority mentioned therein and in case of no LOI holder under the specific category was available, the said ROs were to be advertised for selection of dealer in normal process;

(viii) that the respondent No.1 BPCL misinterpreted and violated the said guidelines in resitement of the petitioner at Shanti Path;

(ix) that the Board of Directors of the respondent No.1 BPCL in the meeting held on 24th September, 2010 was informed that the petitioner was being resited in accordance with the respondent No.2 MoPNG guidelines; however the respondent No.2 MoPNG vide its letters dated 29th December, 2010, 9th February, 2011, 14th March, 2011, 3rd May, 2011, 27th May, 2011, 9th August, 2011, 14th September, 2011, 25th November, 2011 and 6th March, 2012 asked the Board of respondent No.1 BPCL to reconsider but was not reconsidered;

(x) that in the meanwhile, the respondent No.2 MoPNG received complaint dated 25th May, 2011 from one Member of Parliament wherein it was alleged that some of the officials of the respondent No.1 BPCL had permitted resitement of the petitioner at Shanti Path in violation of the guidelines and on receipt of which complaint, a vigilance investigation was commenced; the CVO of the respondent No.1 BPCL concluded vide his report dated 17th October, 2012 that divesting COCO at RO Shanti Path by the officers tantamounts inter alia to violation of the guidelines and breach of rules and violation of laid down procedures and was null and void;

(xi) that the respondent No.2 MoPNG on examination of the report of the CVO vide its letter dated 25th February, 2015 directed the respondent No.1 BPCL to cancel the resitement of the petitioner;

(xii) that further suitable action as may be deemed fit shall be taken.

6. When the petition came up before this Court on 27th May, 2015, both the petitioner as well as the respondent No.1 BPCL claimed to be in possession of the RO at Shanti Path. In this view of the matter, both parties were directed to maintain status quo as it was obtained on that date, till the next date of hearing.

7. The petitioner applied for amendment of the petition to also impugn the letter dated 10th March, 2015 of cancellation of dealership of the petitioner. The said application came up before this Court on 17th September, 2015 when it was allowed un-opposed and the amended petition taken on record. The respondent No.1 BPCL and the respondent No.2 MoPNG have filed counter affidavits thereto.

8. On 14th December, 2015, the following order was passed: “1. An adjournment is sought on the ground of unavailability of the counsel for the petitioner. It is stated that the counsel for the petitioner is unwell.

2. The senior counsel for the respondent No.1 vehemently opposes. It is reminded to the Court that on 6th October, 2015 also when the matter could not be taken up, the respondent no.1 Bharat Petroleum Corporation Ltd. (BPCL) had expressed urgency and thus the counsel for the petitioner was aware that the matter would be taken up today. It is yet further contended that in fact the counsel whose illness is pleaded as a ground for adjournment has not been arguing and on arguing dates a senior counsel has been engaged and could have been engaged today also.

3. The counsel for the petitioner states that the senior counsel who was to be engaged is also out of station today.

4. The senior counsel for the respondent no.1 BPCL further states that the petitioner after obtaining an interim order from this Court has been delaying the matter, sometimes by seeking adjournments and sometimes by making frivolous applications including for amendment of the petition and which amendments have no relevance to the controversy. It is further contended that the petitioner at best was a mere licensee of the respondent no.1 with respect to the subject petrol pump and which licence also had been obtained in violation of the Rules/Guidelines therefor, in collusion with some officials of the respondents no.1 BPCL and in a vigilance inquiry, action has been taken against as many as five officials of the respondent no.1. It is stated that action against two others could not be taken as they had retired. It is also informed that the respondent no.1 BPCL has stopped supplies to the subject petrol pump and now the petitioner is illegally squatting thereon under protection of the interim order of status quo of this Court and the respondent no.1 BPCL is also suffering a loss from being not able to sell its petroleum products therefrom. It is also pointed out that the petitioner has also been given an option to go back to the original Azadpur site from which he was shifted / re-shifted to the subject site.

5. Having considered all the aforesaid facts and factors, I am of the view that the ad interim injunction obtained by the petitioner is to be vacated not only for the reason of the petitioner having chosen not to after notice / after completion of pleadings argued but also in the larger public interest.

6. Not only is the respondent no.1 BPCL being deprived of the revenues from the subject petrol pump but the public must also be suffering owing to non availability of petroleum products at the said site.

7. Accordingly, the interim order dated 27th May, 2015 directing the parties to maintain status quo is vacated.

8. The application for interim relief is dismissed.”

9. CM No.31914/2015 was filed by the petitioner for setting aside of the order dated 14th December, 2015. The same came up before this Court on 22nd December, 2015 when notice thereof was issued and while adjourning the matter to 6th January, 2016, the counsels were asked to come prepared to argue the writ petition also on the said date. The senior counsels for the petitioner was heard on 6th January, 2016, 8th January, 2016 and 25th January,

2016. The learned ASG appearing for the respondent No.2 MoPNG was heard on 28th January, 2016. On 8th February, 2016, the following order was passed: “1. The senior counsel for the respondent no.1 Bharat Petroleum Corporation Ltd. (BPCL) has been heard to an extent.

2. It is inter alia the contention of the respondent no.1 BPCL that the re-sitement of the petitioner from Azadpur to Shantipath COCO site was violative of the Guidelines therefor as filed at pages 33 to 35 of the paper book. During the hearing, the Re-sitement Guidelines w.e.f. 17th November, 2005 at pages 36-41 have also been perused and on a prima facie reading thereof it appears that the re-sitement of the petitioner from Masaurhi, Bihar to Azadpur, Delhi also was contrary thereto. The counsel for the petitioner states that the said resitement was as far back as in 2004 and is not under challenge. The senior counsel for the respondent no.1 BPCL states that the Guidelines applicable in 2004 will be produced on the next date of hearing.

3. The respondent no.1 BPCL to also produce the file containing the decision making process for re-sitement of the petitioner from Bihar to Azadpur, Delhi and from Azadpur, Delhi to Shantipath, New Delhi.

4. The senior counsel for the respondent no.1 BPCL to on the next date also address on whether the Policies regarding Retail Outlets have been examined vis-a-vis the judgment of the Supreme Court in Natural Resources Allocation, In Re, Special Reference No.1 of 2012 (2012) 10 SCC 1. It appears that BPCL and other Oil Marketing Companies cannot be permitted to create rights in perpetuity in retail outlets and there should be allotment of retail outlets except for categories reservation for whom may be deemed necessary, through competitive bidding process.

5. I have already in Bharat Petroleum Corporation Ltd. Vs. Union of India MANU/DE/4431/2015 made certain observations in this regard. The obliviance of the officers of BPCL present in Court thereto shows the scant regard/consideration by BPCL of Courts orders.

6. List on 25th February, 2016.” The senior counsel for the respondent No.1 BPCL concluded his arguments on 25th February, 2016. The senior counsel for the petitioner was heard in rejoinder on 14th March, 2016 and 5th April, 2016 when judgment was reserved.

10. The senior counsel for the petitioner in addition to the factual matrix recorded hereinabove, argued: (a) that the petitioner operated the RO at Shanti Path till 23rd February, 2015 as an all women served RO and won several awards therefor; (b) that the revocation by the respondent No.1 BPCL of the allotment of the RO at Shanti Path to the petitioner vide notice dated 24th February, 2015 was without giving any reason and without any show cause notice and liable to be set aside on this ground alone;

(c) that reliance in this regard was placed on paras 58 and 59 of

M/s. Allied Motors Ltd. Vs. M/s. Bharat Petroleum Corpn. Ltd. AIR 2012 SC 709 and on paras 1, 9 to 11 and 16 of Ashish Gupta Vs. IBP Co. Ltd. 125 (2005) DLT 298;

(d) that no arbitration is possible because the respondent No.2

MoPNG on whose direction the respondent No.1 BPCL has acted is not a party to the arbitration agreement; even otherwise, there can be no arbitration qua rights under Article 14 of the Constitution of India; (e) that the termination of the dealership agreement of the petitioner is also without any notice; as per the licence agreement, termination could be effected after 90 days notice, if without any cause and after 30 days notice, if for any breach; reliance was placed on paras 14, 16 and 18 to 21 of Bharat Filling Station Vs. Indian Oil Corporation Ltd. 104 (2003) DLT 601 and it was argued that no urgency has also been disclosed so as to be dispensed with the notice; attention was invited to the letter dated 29th December, 2010 of the respondent No.2 MoPNG to the respondent No.1 BPCL with respect to the operations of the RO at Shanti Path advising the respondent No.1 BPCL to examine the matter, keeping in view the Guidelines dated 6th September, 2006 and “considering the commercial interest of the company”; (f) attention was invited to the extract of the meeting of the Board of Directors held on 24th September, 2010 recording that Shri Shailender Kumar of the petitioner was not a relative of the Chairman & Managing Director of the respondent No.1 BPCL and that there is no mala fide wrong-doing by any officer of respondent No.1 BPCL in resitement of the petitioner at Shanti Path and that the resitement was carried out in the best interest of the respondent No.1 BPCL; (g) attention was also invited to the agenda item for the Board meeting of 3rd February, 2012 also containing the reasons for resitement of the petitioner; (h) it was informed that the Court case with respect to the RO at Shanti Path is still pending;

(i) that from all the aforesaid documents it is evident that there was no mala fide or errors in the resitement of the petitioner at Shanti Path; attention was also invited to the letter dated 25th November, 2014 of the respondent No.1 BPCL to the respondent No.2 MoPNG reiterating that the resitement of the petitioner from Azadpur to Shanti Path was in accordance with the guidelines and in the best interest of the respondent No.1 BPCL and there was no hanky-panky therein and it is argued that when the respondent No.1 BPCL had taken such a stand till three months before 24th February, 2015, could not, merely because of the directive dated 25th February, 2015 of the respondent No.2 MoPNG, change its stand; (j) that the petitioner, at the time of filing of the petition was not even aware of the reasons for which action divesting it of the RO at Shanti Path was taken and thus could not challenge the same and the decision for the said action had emerged only from the counter affidavit of the respondent No.2 MoPNG and without there being any inkling of it earlier; (k) that the same also demonstrates the need for a show cause notice; had an opportunity been given to the petitioner, the petitioner would have had a chance to explain that there was no violation of the policy or mala fide on the part of the respondent No.1 BPCL on resitement of the petitioner at Shanti Path;

(l) that even from the counter affidavit of the respondent No.2

MoPNG and the documents filed therewith, no finding of any mala fides on the part of anyone in the respondent No.1 BPCL in resitement of the petitioner emerges and the decision to resite the petitioner was on hearsay / impressions;

(m) that no report of the CVO has been placed on record and in any case the said report itself is stated to be three years old, of 17th October, 2012; (n) that the CVO of the respondent No.1 BPCL also did not conduct any inquiry from the petitioner and the report of the CVO also is thus in violation of natural justice and arbitrary; (o) that the report of the CVO in any case is advisory in nature; (p) that till date no prosecution has been launched nor any disciplinary proceedings initiated against anyone for the illegality, if any in such resitement of the petitioner; (q) that the dicta of this Court in Bharat Filling Station supra where it was held that no such action could be taken on the basis of First Information Report (FIR) alone squarely applies and rather in the present case there is no FIR also; (r) that once the Board of Directors of the respondent No.1 BPCL had considered the matter and were satisfied, the petitioner without any notice could not have been so divested of its RO allotted to it; (s) that the respondent No.1 BPCL is not to act at the behest of the respondent No.2 MoPNG, specially when the Board of Directors of the respondent No.1 BPCL had decided otherwise; (t) that the respondent No.1 BPCL even in its counter affidavit to this petition does not say that the resitement of the petitioner was not in consonance with the policy or that there was any wrongdoing; (u) that there are no findings of any extraneous consideration for resitement of the petitioner;

(v) that the letter dated 25th February, 2015 of the respondent No.2

MoPNG to the respondent No.1 BPCL also does not contain any reason and the respondent No.1 BPCL could not have blindly acted thereon, when its Board had earlier concluded that the resitement of the petitioner was in accordance with the extant policy; (w) that thus the divestment of the petitioner of the allotted site challenged in this petition is without any reasons whatsoever and without application of mind; reliance in this regard is placed on para 47 of Kranti Associates Private Limited Vs. Masood Ahmed Khan (2010) 9 SCC 496 and on para 46 of Ravi Yashwant Bhoir Vs. District Collector, Raigad (2012) 4 SCC 407 (DB);

(x) that in any case reasons for the action could not have been given in the counter affidavit and there is nothing to show that any such reasons existed at the time when action was taken; reliance is placed on para 8 of Mohinder Singh Gill Vs. The Chief Election Commissioner, New Delhi (1978) 1 SCC 405; attention was drawn to the policy for resitement of a commissioned dealership / distributorship enclosed to the letter dated 17th November, 2005 of the respondent No.2 MoPNG providing for road widening, diversion of road, re-alignment of existing road by a new one, as a ground for resitement and it was argued that no error has been pointed out in violation thereof; (y) that a note dated 25th March, 2010 was prepared by a Committee of Chief Manager (Highway Retailing), General Manager (Retail) Headquarter, General Manager, Headquarter (Brand & ARB) and General Manager (Highway Retailing) with regard to COCOs was handed over and on the basis thereof, it was argued that all the COCOs which were not meeting the desired standard were agreed to be divested and it was argued that the decision for resitement of the petitioner was thus felt to be the in the best commercial interest of the (z) that the CVO did not know the reasons for the respondent No.1 BPCL choosing not to advertise for Shanti Path RO i.e. the pendency of suit filed by the earlier dealer; (aa) that in equity there was nothing wrong in resitement of the petitioner; (bb) in response to my query it was informed that Mohinder Singh Gill supra has not been diluted and has been followed in Rashmi Metaliks Limited Vs. Kolkata Metropolitan Development Authority

(cc) that the respondent No.1 BPCL as a statutory authority and a writ petition is maintainable against it; reliance in this regard was placed on Bharat Petroleum Corporation Ltd. Vs. Maddula Ratnavalli (2007) 6 SCC 81;

(dd) that the respondent No.2 MoPNG at the relevant time having left the matter of allotment of the Shanti Path RO to the decision of the respondent No.1 BPCL could not have subsequently issued a direction to the respondent No.1 BPCL to revoke the said resitement. A lot of emphasis was made on the respondent No.1 BPCL having rewarded the petitioner for its performance; (ee) had there been any involvement of any of the officers of the respondent No.1 BPCL in such resitement of the petitioner, disciplinary action would have followed; (ff) that no undue favour was shown to the petitioner; (gg) that notwithstanding an arbitration clause writ remedy is available; reliance was placed on Harbanslal Sahnia Vs. Indian Oil Corpn. Ltd. (2003) 2 SCC 107; (hh) that the respondent No.1 BPCL ought not to have taken such mid-night action against its best dealer;

(ii) that photographs of the Azadpur RO site were shown to contend that the same is still not viable. Reliance was placed on M/s. Dadri Cement Co. Vs. M/s. Bird and Co. Pvt. Ltd. AIR 1974 Delhi 223 to contend that the petitioner could not have been reverted to Azadpur RO, the agreement with respect whereto stood novated; (jj) that the respondents have, in the garb of termination of resitement, in fact terminated the licence of the petitioner; (kk) that the landlord of the Azadpur RO has instituted a suit for possession and which is pending adjudication;

(ll) that the mid-night action of the respondent No.1 BPCL against the petitioner was also contrary to public interest. Reliance was also placed on M/s R.K. Associates & Hoteliers Pvt. Ltd. Vs. Indian Railways Catering & Tourism Corporation (IRCTC) 2015 SCC OnLine Del 9528 to contend that existence of arbitration clause in the licence agreement is not a bar to the maintainability of the writ petition;

(mm) that the mere fact that the respondents have taken over Shanti

Path site would not make the writ petition infructuous, inasmuch as if the petitioner succeeds, it is entitled to restoration of possession of the Shanti Path site.

11. The learned ASG appearing for the respondent No.2 MoPNG contended:

(I) that the petitioner has travelled a long distance from Masaurih in Bihar to Shanti Path, New Delhi and the decision of the respondent No.1 BPCL to permit the same was flawed and contrary to policy;

(II) that the dealership is a state largesse;

(III) that the petitioner was operating the RO from 2004 when according to the petitioner also the proposal for its resitement from Azadpur was first mooted, till the year 2010 when the petitioner was ultimately resited;

(IV) that the permanent COCOs were converted to temporary COCO to be ultimately phased out;

(V) that the policy of the year 2005 of allotment of temporary

(VI) that the resitement policy annexed to the letter dated 17th November, 2005 on which reliance is placed by the petitioner is not with respect to the temporary COCOs and there could be no resitement at temporary COCO thereunder;

(VII) that even as per the policy enclosed to the letter dated 17th November, 2005, there could be no resitement on the ground of loss of revenue;

(VIII) that though the respondent No.1 BPCL had terminated the dealership of the petitioner but the petitioner can go back to Azadpur;

(IX) that the COCO Phasing Out Policy dated 6th September, 2006

(X) that the petitioner was / is deemed to be fully in the know of all the policies of the respondent No.1 BPCL and had no bona fides in claiming or in retaining resitement at Shanti Path;

(XI) that the conduct of the petitioner disentitles it from any relief; reliance was placed on M/s. Dharampal Satyapal Ltd. Vs. Deputy Commissioner of Central Excise, Gauhati 2015 (6) SCALE 612 where it was held that when certain benefits were accorded contrary to policy and were thus refundable, issuance of notice would be an empty formality and useless formality theory was invoked;

(XII) reliance was placed on paras 69, 70.[4] and 70.[5] of Joshi

Technologies International Inc. Vs. Union of India (2015) 7 SCC 728 to contend that a writ petition is not maintainable where an arbitration clause exists and in contractual matters; reliance in this regard was also placed on State of U.P. Vs. Bridge & Roof Company (India) Ltd. (1996) 6 SCC 22;

(XIII) that reference was made to K.D. Sharma Vs. Steel Authority of

India Limited (2008) 12 SCC 481 holding that a petitioner whose conduct is not found to be bona fide, his petition has to be rejected on this ground only;

(XIV) that the petitioner has not suffered from any act of the State and the petition is not maintainable for this reason also. The petitioner in any case had no right to remain a licensee of the Shanti Path RO.

12. The senior counsel for the respondent No.1 BPCL argued: (A) that the petition does not disclose any vested right of the petitioner which can be said to have been violated; (B) that the petitioner has invested neither in land nor in equipment nor in supplies of the petroleum products retailed from the RO, all of which were provided by the respondent No.1 BPCL;

(C) that the claim of the petitioner of being in possession and to possession, when as per the terms of the licence, the possession is of the respondent No.1 BPCL, also disentitles the petitioner from any relief in the writ petition;

(D) attention was invited to Clauses 15, 18, 19(a) & (b) of the licence to contend that the arbitration is contemplated therein is also empowered to restore possession; (E) that a supplementary affidavit was handed over to the effect that Azadpur RO is accessible from three directions and likely to have sales of more than 500 KL per month, which is much above the threshold volume of 150 KL required for setting up of a new RO in Delhi; (F) that the petitioner having got Shanti Path RO through unfair means had to be necessarily divested thereof in public interest; (G) that the policy prevalent at the time of resitement of the petitioner from Masaurih in Bihar to Azadpur Delhi was handed over to show that such resitemetn of the petitioner was also contrary thereto and did not even have the approval in accordance with the policy; (H) that the petitioner in terms of Clauses 1, 4, 15, 18 & 21 of the licence agreement had no vested right with respect to any RO;

(I) that since the resitement of the petitioner at Shanti Path was through the backdoor, there is no injustice in reverting the petitioner to Azadpur and no notice was required to be issued; (J) that the writ remedy is to be invoked to meet the ends of justice; here there is no injustice; (K) that reference was made to Rajasthan State Industrial Development and Investment Corporation Vs. Diamond & Gem Development Corporation Limited (2013) 5 SCC 470 to contend that the Court should not exercise its writ jurisdiction to enforce contractual obligations;

(L) attention was invited to para 98 of Ramesh Chandra Sankla

Vs. Vikram Cement (2008) 14 SCC 58 laying down that the discretionary and inequitable powers under Article 226 of the Constitution are required to be exercised in the larger interest of justice, balancing the interests and equities and relief can be denied in public interest;

(M) reliance was placed on Dharampal Satyapal Limited Vs.

Deputy Commissioner of Central Excise, Gauhati (2015) 8 SCC 519 laying down that a breach of procedure cannot give rise to a remedy in the Courts, unless behind it there is something of substance which has been lost by the failure; (N) that now when this Court has heard the petitioner, if this Court were to be of the view that the removal of the petitioner from the RO of Shanti Path is justified, even if this Court to be of the view that the petitioner should have been granted a hearing, the petitioner ought not to be restored to the RO at Shanti Path for the said reason; (O) that this is not a fit case for exercise of extraordinary power of prerogative writ.

13. The senior counsel for the petitioner in rejoinder, besides recapitulating his opening arguments, contended:

(i) that the resitement policy enclosed to the letter dated 17th November, 2005 and the COCO policy dated 6th September, 2006 have to be read harmoniously;

(ii) that as per the 17th November, 2005 policy, the petitioner had to be resited on account of road re-alignment;

(iii) that there is no bar in the 6th September, 2006 policy to resitement at the COCO RO;

(iv) that at the relevant time, owing to the road realignment at

Azadpur, the petitioner had to be resited and had the COCO RO at Shanti Path not been allotted to it, the right of the petitioner of resitement would have been violated;

(v) that the petitioner was employing women at the RO of Shanti

(vi) that the tearing hurry shown by the respondent No.1 BPCL in vacating the petitioner from the RO of Shanti Path shows the mala fides of the respondent No.1 BPCL;

(vii) that the petitioner in accordance with the policy of the respondent No.1 BPCL was also operating an „In and Out‟ store from the Shanti Path RO and has been vacated therefrom also;

(viii) that Azadpur RO is still not functional;

(ix) distinguished the judgments cited by the counsels for the respondents.

14. I have considered the rival contentions.

15. Though at one time, the respondent BPCL had terminated the dealership of the petitioner but is now not insisting on such termination and the question to which this writ petition is confined is whether the action of the respondent BPCL of reverting the RO of the petitioner from Shanti Path to Azadpur is illegal.

16. The first illegality argued by the senior counsel for the petitioner is, of the said reversion being without notice and without hearing to the petitioner. In this regard, the reason for which such action has been taken becomes important. It is the case of BPCL and MoPNG that the resitement of the petitioner from Azadpur to Shanti Path was illegal and the action of undoing what was illegal does not require any notice or hearing to be given. I, however, do not deem it necessary to adjudicate the said question at this stage, when the petition is pending before this Court for the last nearly 1 ½ years and when the petitioner, though had sought, did not get any interim relief of restoration of supply of petroleum products which had been stopped since 24th February, 2015 and managed to get interim relief only of maintenance of status quo qua possession and appears to have been satisfied therewith. The reason thereof is obvious. The petitioner, besides a retailing petroleum products from the RO at Shanti Path, was also operating an “In and Out” store from the said outlet and the business of an “In and Out” store appears to have been more lucrative and more rewarding than the business of operating the RO. The petitioner felt the pinch only after was divested of the “In and Out” store pursuant to vacation on 14th December, 2015 as of the interim order earlier granted of „status quo‟. I am of the view now that all the issues have been thrashed out before this Court in the lengthy and elaborate hearing, in the facts of the present case, even if I were to find that the petitioner before the impugned action was required to be given a notice and an opportunity of being heard, disposal of the petition simply with that direction without returning any findings on the other arguments urged would be a wastage of judicial time.

17. Moreover, no prejudice is found to have been caused to the petitioner from being deprived of notice and hearing, even if were to be given. Petitions, one of the ground of challenge to the impugned action wherein is of non-grant of hearing/notice, depending upon their peculiar facts can be either disposed of at the initial stage with a direction for hearing to be given and if remain pending and are heard finally, can be disposed of with such a direction only if the petitioner is found to be suffering from any prejudice by being deprived of the notice and/or hearing. In most cases, including the present one, disposal of the petition with the direction for hearing to be given would only delay, keeping the rights of the respective parties at sea and thereby preventing both parties from beneficial use and enjoyment o the property concerned. Considering the nature of the property concerned in the present case i.e. a RO, keeping the rights at sea any longer would be against public interest.

18. There is another reason for which I say that keeping the issue at sea is contrary to public interest. According to the respondents, the petitioner was resited from the RO at Azadpur to the RO at Shanti Path to the detriment of others who, as per the policy of MoPNG were required to be allotted the same. If that is found to be true, then no illegality can be seen in undoing thereof at the earliest so as to enable the RO at Shanti Path to be allotted to its rightful claimants.

19. Supreme Court recently in Dharampal Satyapal Ltd. supra, after holding that there was a requirement of issuance of a show cause notice before taking the action impugned therein, proceeded to hold that the principles of natural justice are very flexible principles and cannot be applied in any straight jacket formula. It was held that it may not be necessary for the Court to strike down the action and refer back the matter to the authorities concerned to take a fresh decision after complying with the procedural requirements in those cases where non grant of hearing has not caused any prejudice to the person. It was further held that rules of natural justice are to be followed for doing substantial justice and are not ritualistic.

20. As far as the objections of the respondents as to the maintainability of the petition for the reason of existence of an arbitration clause in the dealership agreement is concerned, the principle of non-maintainability of a writ petition if an alternative suitable remedy is available is also a principle of discretion and not an absolute principle. I am again of the view that once the writ petition remains pending and arguments have been fully heard thereon and if the question involved can be adjudicated conveniently in writ jurisdiction, the Court should ordinarily attempt to dispose of the question in writ jurisdiction even if the alternative remedy is available, so that judicial time is not wasted.

21. That brings me to the illegality if any on merits in the action of the respondents, of reverting the petitioner from Shanti Path to Azadpur. Though to the petitioner, as a dealer of BPCL, it should matter not whether it deals in the BPCL products from Shanti Path or from Azadpur, but obviously the petitioner has reason to feel aggrieved therefrom. The reasons which have come forward are two-fold. First, commercial and second being the fear of losing the dealership at Azadpur also in the eventuality of BPCL being evicted from the said site by the owner/landlord thereof. As aforesaid, the petitioner till was not divested of “In and Out” store being operated by it at the RO at Shanti Path was satisfied with the interim order of status quo qua possession even without being able to operate/retail petroleum products therefrom and of which additional source of revenue there appears to be no possibility from the RO at Azadpur. However, the same, in my view will not qualify as reasons for which the petitioner can legally be said to feel aggrieved. The petitioner has not been assured any minimum revenues while becoming a dealer of BPCL. In any case it has come on record that the sales from the RO at Azadpur have also always been above the minimum „off take‟ which is required of a dealer of BPCL.

22. Before proceeding to discuss the question further I may record that several cases have come before this Court where as a result of development of civil infrastructure in the city resulting in realignment of the roads, or for other varied reason, RO‟s of oil companies have had to shut down or close and dealers whereof have been left without any RO to operate. The consistent stand of the oil companies in those cases has been that resitement is subject to policy and availability and not as a matter of right and those petitions have been disposed of with directions to the oil companies to accommodate such dealers subject to availability. Reference can be made to Khandelwal Oil Company Vs. Indian Oil Corporation 2012 SCC OnLine Del 1400 (DB) and to Bharat Petroleum Corporation Ltd. Vs. Union of India MANU/DE/4431/2015.

23. On the contrary, here is a case where the petitioner by acquiring the dealership of BPCL with respect to a RO in a remote corner of Bihar has used the same to successively shift to more lucrative RO‟s of BPCL. Indeed a special treatment appears to have been given by BPCL to the petitioner.

24. The petitioner, along with the petition, in support of its plea of resitement from Azadpur to Shanti Path being in accordance with law, filed the letters dated 17th November, 2005 and 6th September, 2006. The letter dated 17th November 2005 of MoPNG to the oil companies annexing thereto the marketing guidelines including with respect to resitement of dealerships and distributorships. It inter alia provides that resitement of a commissioned dealership / distributorship “may be considered” inter alia on the ground of re-alignment of existing road and subject inter alia to (i) being within the same district/area/State and class of markets; (ii) the dealership/distributorship at the old location being decommissioned. The letter dated 6th September, 2006 is with respect to operation of RO‟s on COCO basis and directing phasing out of temporary COCOs by offering and handing over of the same subject to suitability to the pending letter of intent holders under the following categories:- “(a) Special Scheme (Operation Vijay-Kargil), the Kargil allottees (b) Discretionary quota scheme

(c) Corpus Fund Scheme (SC/ST category of dealerships, widows and women above 40 years of age without earning parents).

(d) Other categories as prescribed in the marketing plans.

(e) The industry may pool their available temporary COCO ROs for offering to the categories under (a) & (b) above. In case no LOI-holder under these categories are available, then these dealerships should be advertised for selection of dealers under normal process.”

25. It would thus be seen that while the letter dated 17th November, 2015 supra enables resitement but does not provide where the dealer/ distributor can be resited; the letter dated 6th September, 2006, though not concerning resitement of a commissioned dealer / distributor, provides for phasing out of ROs being operated on temporary COCO basis. It is not in dispute that the Shanti Path RO was being operated on temporary COCO basis and was to be dealt with in accordance with letter dated 6th September, 2006. The question for consideration is, whether under the policy contained in the letter dated 6th September, 2006, it could have been allotted to the petitioner by way of resitement from Azadpur.

26. According to the petitioner, at the time of phasing out of Shanti Path RO from the category of temporary COCO, no LOI holder belonging to either of the categories of, Operation Vijay-Kargil or Discretionary Quota Scheme of any of the Oil Companies or of other categories prescribed in the marketing plans of the respondent BPCL was available. Though the same does not inspire confidence as it is unbelievable that no LOI holder of any of the Oil Companies from the Operation Vijay-Kargil or Discretionary Quota Scheme was available but even if that be so, according to the letter dated 6th September, 2006, the Shanti Path RO then had to be advertised for selection of dealers under the normal process. The same was admittedly not done and instead the petitioner was resited thereat. The other reason given by the petitioner for the RO being not advertised because of pending Court case is also not only without any basis but also not tenable in law. There admittedly was no stay from the Court against advertisement. Just like the petitioner, notwithstanding the Court case was willing to be resited, so could have others been willing. In any case, even if it were to be believed that the petitioner was willing to be resited there as a temporary measure, the petitioner cannot now claim any permanency with respect thereto. Also, there is no absolute right of resitement as aforesaid. The right is only to be considered for resitement and subject to availability.

27. Such resitement of the petitioner at Shanti Path RO which was till then being operated on temporary COCO basis is clearly in violation of the policy contained in letter dated 6th September, 2006. The petitioner was certainly given something by respondent BPCL, to what he was not entitled to, not only in violation of policy with which the respondent BPCL was bound but also at the cost of dependents of martyrs of Operation Vijay - Kargil or those in Discretionary Quota Scheme, of any of the Oil Companies and/or at the cost of selection of dealer / distributor thereof through advertisement, offering equal opportunity to all. The fact that none of the officials of the respondent BPCL responsible for this violation have been proceeded against or punished therefor will not convert what was given to the petitioner in violation of the policy, in accordance with the policy and will not diminish the need to undo the illegality committed. Similarly, the decision of the Board of Directors of the respondent BPCL, of the resitement of the petitioner being in accordance with the extant policy, did not take away the right of MoPNG to, upon finding the same to be against the policy, direct the respondent BPCL to undo the illegality.

28. It was in this context that I had vide my order dated 8th February 2016 supra drawn the attention of the counsels to the directions issued by me in Bharat Petroleum Corporation Ltd. Vs. Union of India, MANU/DE/4431/2015 and to which no heed appears to have been shown by the BPCL till now. I had therein wondered, as I had now also, as to what is the right of a person who once becomes the dealer of an Oil Company to the dealership in perpetuity. Ordinarily no contracts of the Governments are in perpetuity, the intention being to give opportunity to all desirous of availing thereof. If dealerships are given a perpetual status, considering the fact that there is hardly any scope for any new dealership in the city, it would amount to those who have succeeded in acquiring the same, enjoying it like ownership rights in immovable property and to the detriment of others when a dealership is but a largesse. There can possibly be no justification for allowing a dealership once obtained, say under the operation (Vijay-Kargil Scheme) to help out martyrs, to continue in the family of such martyrs and resulting in none being available subsequently for another who may have similarly suffered.

29. I have in this context also enquired of the commission which the dealers of oil companies get from sale of the petroleum products and had yet further inquired why should the dealership not be auctioned to a person who tenders the minimum commission. The only answer forthcoming was that introducing competition in commission may introduce an element of adulteration of petroleum products. However, in my understanding, payment of a high fixed commission does not insure that adulteration will not be indulged in.

30. Be that as it may, these issues are for the respondent BPCL to consider in pursuance to my directions in the judgment aforesaid.

31. The only response of the petitioner to my repeated query, that without the letter dated 6th September, 2006 supra (laying down modus of phasing out of temporary COCOs) providing for resitement therein of existing dealers, how could the petitioner be resited therein, was that since the guidelines circulated under cover of letter dated 17th November 2005 provided for resitement and there was no bar in the letter dated 6th November, 2006 to such resitement at the temporary COCO being phased out, there was no illegality in the petitioner being resited there.

32. I am unable to agree. Once the policy of phasing out of temporary COCOs was clear and the residuary clause therein provided for dealers to be invited by advertisement, if there were no existing LoI holder of the specified categories and since there was no provision therein for resitement of an existing dealer, such resitement is excluded therefrom. Significantly, the policy contained in the letter dated 6th September, 2006 is not under challenge.

33. The illegality in resitement of the petitioner at Shanti Path is thus writ large. In fact it has also come on record that the Azadpur RO has not been decommissioned and which is one of the requirements of resitement under the letter dated 17th November, 2005. It being so, there can be no illegality in undoing the illegality taking benefit whereof the petitioner in the first place came to Shanti Path.

34. No merit is thus found in the petition. Dismissed.

35. The petitioner having availed of the interim order having taking benefit thereof also continued to earn from the “In and Out” store and to the deprivation of the respondent of earnings from the said RO is also burdened with costs of Rs.[1] lakh of this petition to be payable to BPCL within four weeks hereon.

RAJIV SAHAI ENDLAW, J. JULY 07, 2016 „bs‟/gm