IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP No. 10407 of 2002(L)
1. BABU VARGHESE, PROPRIETOR,
... Petitioner
Vs
1. THE INDIAN OIL CORPORATION LTD.,
... Respondent
2. MINISTRY OF PETROLEUM & NATURAL GASES,
3. UNION OF INDIA, REP.BY THE SECRETARY TO
For Petitioner :SRI.S.GOPAKUMARAN NAIR
For Respondent :SRI.M.K.SUMOD, ADDL.CGSC
The Hon'ble the Chief Justice MR.H.L.DATTU
The Hon'ble MR. Justice K.T.SANKARAN
Dated :16/08/2007
O R D E R
H.L.DATTU, C.J. & K.T.SANKARAN,J.
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O.P. NOS. 10407 & 13303 OF 2002
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Dated this the 16th August, 2007
JUDGMENT
SANKARAN,J.
The prayers in O.P.No.10407 of 2002 are the following:
“i) to issue a writ of certiorari or any other direction or
order quashing Ext.P5 as arbitrary and illegal;
ii) issue a writ of mandamus directing the respondents
not to transfer any of the existing customers of the
petitioner to any newly appointed distributor;
iii) to issue a writ of mandamus or direction or order,
directing the respondents to allow the petitioner to
enroll customers and sell refills upto his ceiling limit
specified by the respondents;
iv) to issue a declaration that the petitioner is entitled to
sent enroll customers and sell refills upto the ceiling
limit fixed for him by the respondents;
v) to issue an interim order staying operation and
implementation of Ext.P5 as far as the petitioner is
concerned pending final disposal of the Original
Petition;
vi) to issue any other order as this Hon’ble Court may
deem fit and proper in the facts and circumstances of
the case.”
Exhibit P5 is the direction given by the Government of India vide letter
dated 10th October, 2001 for the transfer of L.P.G connections from one
distributor to another on the basis of viability norms.
2. The prayers in O.P.No.13303 of 2002 are the following:
“i) issue a writ of mandamus or such other appropriate
writ, order or direction commanding respondents 3 and
5 to 7 to take necessary steps to effect transfer
O.P. Nos.10407 & 13303 of 2002
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customers from the rolls of the existing distributors to the
newly commissioned distributorships of the petitioners and
also to ensure that the old distributors do not operate in the
areas for which petitioners have been given the right of
distributorship in LPG;
ii) issue a writ of mandamus or such other appropriate writ,
order or direction commanding respondent No.1 to take
adequate steps to enforce and implement Exhibit P3 and on
failure of the Oil Corporations to carry out the instructions
contained therein, take necessary punitive action against
them; and
iii) grant such other reliefs as this Hon’ble Court may deem fit
and proper in the facts and circumstances of the case.”
3. A similar question was considered by a Division Bench of this Court in
O.P.No.15397 of 2003 and connected cases, which were disposed of by
judgment dated 28th May, 2003, wherein it was held thus:
“11. Admittedly, an agreement had been executed at the
time of appointment of the petitioners as distributors. A perusal of
the terms of the agreement shows that the Corporation had
specifically reserved the right to “appoint one or more additional
distributors in the same territory. ….” This could be done “without
any reference to or consent of the distributor”. Still further it was
also provided that the distributor shall be liable to “confine himself
to effect the sales in the area or territory specified hereinabove but
the Corporation shall be entitled without the consent of the
Distributor to enlarge, reduce, increase or modify such area or
territory to such other place as may from time to time be authorised
by the Corporation in writing.” Thus, it is clear that under the
agreement the Corporation was entitled to appoint additional
distributors for the area which had been allotted initially to any
dealer including the present petitioners. Still further, the
Corporation was also entitled to unilaterally reduce the area which
may have been initially allotted to a dealer. Another fact which
deserves mention is that in clause 11 of the agreement the
distributors had specifically undertaken to “faithfully and diligently
observe and carry out all directions, orders, terms and conditions
as may be issued from time to time. …” In clause 23 also a similarO.P. Nos.10407 & 13303 of 2002
:: 3 ::
provision had been made.
12. In view of the terms of the agreement it is manifest that
the distributors like the petitioners did not have an indefeasible
right to effect sales within the area allotted to them. The area of
their operation could be unilaterally reduced. New distributors
could be appointed for the same area. This is precisely what has
happened in the present set of cases.”
Respectfully following the Division Bench decision in O.P.No.15397 of 2003,
O.P.No.10407 of 2002 is dismissed and O.P.No.13303 of 2002 is allowed. The
directions issued in O.P.No.15397 of 2003 shall follow in O.P.No.13303 of 2002
as well.
Consequent to the order in the Original Petitions, pending interlocutory
applications are also rejected.
(H.L.DATTU)
Chief Justice
(K.T.SANKARAN)
Judge
ahz/
H.L.DATTU,C.J. &
K.T.SANKARAN, J.
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O.P.NO.10407 OF 2002 &
O.P.NO.13303 OF 2002
JUDGMENT
16th August, 2007
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