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MRS. NAZBUNNISHA AND ANOTHER versus SENIOR DIVISIONAL MANAGER, INDIAN OIL CORP. AND OTHERS

High Court of Judicature at Allahabad

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Mrs. Nazbunnisha And Another v. Senior Divisional Manager, Indian Oil Corp. And Others - WRIT - C No. 31006 of 1997 [2005] RD-AH 1328 (13 May 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Civil Misc. Writ Petition No. 31006 of 1997

Mrs.Nazbunnisha and another .......... Petitioners

Versus

Senior Divisional Manager, Indian

Oil Corporation Ltd. and others .......... Respondents

Present:

(Hon'ble Mr.Justice Amitava Lala and Hon'ble Mr.Justice Sanjay Misra)

Appearances:

Counsel for the petitioners : Sri P.Sahai,

Sri P.K.Sinha,

Sri B.B.Paul, and

Sri A.P.Paul.

Counsel for the Respondents : Dr.R.G.Padia,Sri P.Padia,

                     and Sri G.N.Verma.

Amitava Lala,J.:-    The original petitioner no.1 was wife of one Sri Qutbullah, since deceased.  Petitioner no.2 is son of Sri Qutbullah, since deceased.  During the pendency of the writ petition petitioner no.1 expired and two of the other sons of Sri Qutbullah, since deceased, were substituted in the place and instead of petitioner no.1.

According to the petitioners, one Sri Ahsan Jalil Abbasi and Sri Ram Deo applied for dealership under Indian Oil Corporation Ltd. and the same was accepted.  These two persons formed a partnership known as M/s Kissan Automobiles.  Said Sri Ahsan Jalil Abbasi, respondent no.6 herein, as a partner of the said Firm informed the Divisional Manager of the Company by a letter dated 25.8.1977 that Sri Ram Deo has expressed his unwillingness to run the said business on his personal grounds.  Hence, he may be allowed to carry on the business with the help of said Sri Qutbullah, since deceased, as partner in the place and instead of Sri Ram Deo.  Accordingly, the reconstitution of the Firm was solicited for approval from them.  However, it was informed that the nomenclature will not be changed.  Subsequently, Divisional Manager of the respondent Company made recommendation for approval of the reconstitution of the Firm subject to certain conditions as given in Inter Office Memo dated 29.3.1978.  On 8.12.1978 management approved the reconstitution of the dealership Firm again subject  to completion of certain formalities.

From the copy of the deed of partnership under Annexure-5, we find that there are four partners of the partnership Firm.  Sri Qutbullah, since deceased, being the first partner holding share of 5 paise in a rupee.  Sri Ahsan Jalil Abbasi, as a second partner holding  share of 50 paise in a rupee.  One Sri Anees Ahmad son of said Sri Qutbullah, since deceased,being third partner holding share of 15 paise in a rupee.  Smt. Anwar Jhan daughter of Sri Qutbullah, since deceased, being fourth partner holding share of 30 paise in a rupee.  Said Smt. Anwar Jhan is neither made party herein nor appeared voluntarily.  So far as Sri Anees Ahmad is concerned, he has inducted along with Sri Mobeen Ahmad son of Sri Qutbullah, since deceased, in the place and instead of Mrs. Nazbunnisha wife of said Sri Qutbullah, since deceased recently.

In the aforesaid circumstances, the position of the petitioners ought to be clarified by this Court at first.

Right of the petitioner no.1, if any, is flowing from the original right of Sri Qutbullah, since deceased.  Petitioner no.2 appears to be un-necessary party and cannot represent the case as a petitioner independently.  Since the petitioner no.1 expired the petition cannot stand on its own footing.  Obviously, for such reason Sri Anees Ahmad and Sri Mobeen Ahmad were brought into the record as party petitioners.  Again Sri Mobeen Ahmad has no business in connection with such partnership firm.   Assuming for the moment parties hereunder have right of the share of Sri Qutbullah, since deceased, through mother Smt. Nazbunnisha, since deceased, they cannot claim anything beyond 5% share holding which originally accrued.  Sri Anees Ahmad has not been brought in the record separately for his right of share in the firm.  The partnership is "AT WILL" and will dissolve by mutual consent or two months registered notice not by death.  The original petitioner annexed certain documents to substantiate  Sri Qutbullah, since deceased, was working as partner of the partnership firm M/s Kissan Automobiles.  Ultimately the petitioner alleged, by making this writ petition, that Sri Ahsan Jalil Abbasi, respondent no.6 herein, with a dishonest intention written a letter to the authority of the Indian Oil Corporation Ltd. to stop the supply of oil to M/s Kissan Automobiles which was accepted by the implementation though no written order was communicated by respondent Indian Oil Corporation Ltd.   Respondent no.6 wants  to usurp entire business.  He wants to shift business from one place to another.  Ultimately in the writ petition two vital prayers are made which are as follows:

(i) issue a writ, order or direction in the nature of mandamus commanding the respondents not to re-site or shift the petrol pump of M/s Kissan Automobiles belonging to the petitioners.

(ii) issue a writ, order or direction in the nature of mandamus commanding the respondents to resume the supply of the petitioners petrol pump M/s Kissan Automobiles forthwith.

So far as the  prayer (ii) is concerned the petitioners did not want to press for that prayer but they have pressed for prayer (i) very much.

Sri Ahsan Jalil Abbasi respondent no.6 herein stated that both his name and name of said Qutubullah, since deceased were mentioned in the record of Indian Oil Corporation Ltd.  As because partnership continued in between two partners, after the death of Sri Qutubullah partnership will die its natural death.  But the dealership of the petroleum products with the respondent no.6 respondent Corporation continued.    The  position remains as if the respondent no.6 as a sole partner of the firm continued with the business.  However such type of dispute can not be maintainable in the writ court for its disposal.  So far as the documents annexed to the writ petition being written by District Supply Officer, Basti is concerned, the same does not relate to supply of the petrol to the petrol pump in this transaction.  

In a reply the petitioner contended that there is no disputed question of facts  involved herein so that the matter can be relegated to the suit.  By citing a judgment reported in 1969 (3) SCC 769 (Smt.Gunwant Kaur and others vs Municipal Committee, Bhatinda and others) the learned counsel appearing for the petitioners contended that the High Court has power under Article 226 of the Constitution of India to decide question of facts in dispute.  Again by citing  (2004 )3 SCC 553 (ABL International Ltd. And another vs Export Credit Guarantee Corporation of India Ltd. And others) they contended  that in an appropriate case the writ court has jurisdiction to entertain writ petition involving disputed questions of fact and there is no absolute bar in regard thereto.  He further contended as per the ratio of (1986) 2 SCC 679 (Comptroller and Auditor-General of India, Gian Prakash, New Delhi and another vs K.S.Jagannathan and another) Article 226 is designatedly couched in a wide language in order  not to confine the power conferred by it on the High Courts only to the power of prerogative writs as understood in England.  The High Courts in exercising jurisdiction under Article 226 of the Constitution of India can issue " directions, orders, or writs" so as to enable the High Courts to reach       injustice wherever it is found and  mould the reliefs to meet the peculiar and complicated requirements of this country.  As the respondent company is coming under the category of "Other Authorities" under Article 12 of the Constitution of India as per the ratio of the judgment reported in 1981(1) SCC 449 ( Som Prakash Rekhi vs Union of India and another ) writ lies against it.

According to us Chapter VII of the Petroleum Rules,2002 deals with licence.  It includes grant,renewal,amendment,alterations of the licenced premises etc.

Precisely the case of the petitioner can be brought under Rule 146? A party seeking  alteration of the licenced premises can submit a plan when the licensing authority scrutinise the same after making enquiry with a proposal of alteration and ultimately convening sanction to such condition or conditions as the same is specified.  Immediately thereafter holder of licence can apply for necessary amendment.  However, wrongful act on the part of the authority is controlled by the provision of appeal under Rule 154 of such Rules.  The appeal is applicable when the order of refusal to grant, amendment or renewal of a licence cancelling suspending a licence is maintainable.  Similarly under sub rule 2 an appeal against any order of the District Authority refusing to grant or cancelling a no-objection certificate shall lie to the authority  who is immediately superior to the said District Authority.  Now the question arose whether the present dispute about shifting of premises can be taken to the authority or not.  Frankly speaking no such provision of appeal is technically available in this respect.  But before passing such order, the Court has to come to a conclusion with regard to right,title and interest of the petitioners herein.  The very locus standi of the petitioners for the purpose  of invocation of the writ jurisdiction is doubtful.  They are not the independent partners under the writ petition.  They have claimed their right arising out of the wife of Sri Qutbullah, since deceased.  The firm is admittedly an unregistered firm.  Disputes as regards the partnership is to be resolved by a competent court of law.  Unless and until the right of the petitioners are determined, by a competent Civil Court they have no locus standi to speak about shifting or not shifting of the dealership business from one premises to other.  We can not put the cart before the horse.  As far as the Oil Company is  concerned it is not supposed to enter into internal dispute amongst the partners. They are to supply  oil to the dealer to re-supply to the public.  They can not run with the whims of any of the partners.  If any partner has a dispute against other partner, he can very well go before the Civil Court for the purpose of appropriate adjudication and determination of right.  Even after filing such suit, the petitioners can seek for relief as hereunder by way of interlocutory application/s therein.  The original petitioner No.1 did not choose to do so.   On the other hand a partnership dispute amongst the two private parties brought before the writ court in 1997 which is pending till this date.  It is unfortunate situation.  No doubt writ court some times investigate factual dispute.  But there is a cordial principle of its application based on factual aspect of each case.  Normally  Court can  look into the fact when law is prevailing upon fact  but not when fact is prevailing upon law.  If an uncontrollable disputed question of fact arose which can not be entertained within the fore corners of the of the writ jurisdiction but by a fact finding court, power of the writ jurisdiction should not be misused.  This is such a case. Therefore, we do not want to interfere with the investigation of the facts.  1986 (2) SCC 679 ( supra ) did not recognise remedy under Article 226 in respect of private dispute to reach in justice  and mould the relief to that extent but in respect of dispute with the State.  Here the basic dispute is in between two private parties.

Thus, in totality we are of the view that no relief can be granted by the Court in this writ petition.  Therefore the writ petition stands dismissed.  Interim order, if any, stands vacated.  No order is passed as to costs.

However, this order will not prevent the petitioners, if they choose to go Civil Court for the purpose of redressal of their grievance.  In case they file suit, they may apply therein for exclusion of the period from the date of filing the writ petition till the date of certified copy laying ready for delivery in this High Court.  If they choose  to go before the Civil Court, that will be done as early as possible but not beyond the period of ten days from this date and in case of default, liberty as granted by this Court will automatically cease to take effect.

            ( Justice Amitava Lala )

I agree.

(Justice Sanjay Misra )

MAA/PKB

Dated 13.5.2005


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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