The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) NO. 17154 OF 2023 M/s. Bimala Filling Station, represented through its partners, Cuttack …. Petitioners Mr. Gautam Mukherji, Senior Advocate being assisted by Mr. S.D. Ray, Advocate M/s Bharat Petroleum Corporation Ltd., Bhubaneswar and others -versus- …. Opp. Parties Mr. Debendra Kumar Sahoo, Additional Government Advocate (For Opp. Party No.4) Mr. Srinivas Pattnaik, Advocate (For Opp. Party Nos. 1 and 2) CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 18.11.2024 9. 1. This matter is taken up through hybrid mode. 2. The Petitioners in this writ petition pray for a direction to Bharat Petroleum Corporation Limited (for short ‘BPCL’) to do away with the NOCs of all family members of the partners and to reconstitute the dealership pursuant to the partnership deed dated 28th September, 2018. 3. Mr. Mukherji, learned Senior Advocate submits that M/s Bimala Filling Station is a retail outlet dealership dealing with petroleum products owned by the Petitioners. The retail outlet was being managed by a partnership firm. In 1970, dealership agreement was executed by the partnership firm having two partners, namely, Krushna Chandra Jena and Kshirod Chandra Page 1 of 7 // 2 // Jena. During continuance of the partnership, Krushna Chandra Jena died on 23rd September, 1981. Kshirod Chandra Jena continued the dealership inducting one of his son, namely, Sambit Jena (Petitioner No.1) as a partner. Subsequently, Kshirod Chandra Jena also died on 15th September, 2018. Thus, the Petitioners (sons of late Kshirod Chandra Jena) reconstituted the firm vide partnership deed dated 28th September, 2018 and requested the BPCL to reconstitute the dealership. Such proposal was not acceded to on the plea that the Petitioners had not submitted any NOC from other family members, namely, descendants of late Krushna Chandra Jena. Hence, the Petitioners were directed to obtain NOCs from all the descendants from late Krushna Chandra Jena and submit the same for reconstitution of the dealership. Although the Petitioners could obtain NOCs from 13 descendants of late Krushna Chandra Jena, but rest two of them being not available and their whereabouts being not known, the Petitioners could not obtain NOC from them to be submitted before BPCL. Since then, reconstitution of the dealership is pending consideration with BPCL. 3.1 Mr. Mukherji, learned Senior Advocate further submits that for reconstitution of the partnership firm, no objection from other descendants of the deceased partner is not necessary as per the provisions of the Partnership Act. However, guidelines for reconstitution of the dealership clearly provide the procedure to meet with such exigencies. He refers to the relevant provisions of the guidelines for reconstitution of the dealership. Relevant Page 2 of 7 // 3 // Clauses of the Detailed Guidelines for Reconstitution of Retail Outlet/SKO-LDO Dealerships are stated hereunder: in in concerned, the District to approve reconstitution of In cases where Nominee(s)/Legal Heir(s)/ 6. Partner(s) is/are not traceable: In cases where one or more of the Nominee(s)/Legal heir(s) of deceased proprietor/Partner(s) is/are not available/not traceable and/or their present address is not known, then OMCs shall issue a notice [cost to be borne by surviving partner(s)/other legal heir(s)] in the highest circulated newspaper seeking response/objection within 30 days from the date of notice on the proposed reconstitution of the Firm & clearly stating that no further claim beyond the stipulated period of 30 days will be entertained. Additionally, the Notice should be sent under Regd/AD Post to the last known address of the deceased Partner(s)/Nominee(s)/Legal Heir(s) of deceased partner(s). This notice will be consultation with Legal/Law Deptt. finalized Thereafter, the OMC shall be at liberty to exercise its rights the dealership such Nominee(s)/Legal heir(s)/Partner(s). excluding However, the proprietor/partner(s) of the reconstituted dealership will have to indemnify the OMC (Annexure- H2) against any claims or demands which may be made in future. In cases where Nominee(s)/Legal Heir(s) not 7. responding: In cases where one or more of the Nominee(s)/Legal heir(s) of deceased proprietor/ partner(s) have not given their consent within specified period of 30 days, another time period of 30 days (as reminder) shall be given to the nominee(s)/legal heir(s) for expressing their willingness to join the dealership failing which, it will be treated that they [non responding nominee(s)/legal proprietor/ partner(s)] are unwilling to be inducted in the Dealership and the OMC shall be at liberty to exercise its rights to approve reconstitution of the Dealership with the willing nominee(s)/legal heir(s). However, surviving/ the reconstituted incoming proprietor/partner(s) of Dealership will have to Indemnify the OMC against (Annexure-12) any claims or demands which may be made in future.” deceased heir(s) the of Page 3 of 7 // 4 // Clause-L of the Detailed Guidelines for Reconstitution of Retail Outlet/SKO-LDO Dealerships reads as under: “L. RECONSTITUTION OF PENDING CASES: 1 to 3 xxx xxx xxx 4. Cases where dealership is being operated by one or more partners after exit or prolonged absence of partner(s) from the dealership without approval of OMCs. There are cases where Dealership is being operated by one or more partners after exit or prolonged absence of partner(s) from the dealership, without approval of OMCs. The dealership has been operating without any claim/dispute the partner(s), who have exited from the dealership/have been absent for a very long time. OMCs have also by the their conduct recognized dealership through such remaining partner(s). the operation of from The remaining partner(s) will be invited by way of notice to apply for reconstitution of dealership as per the prescribed format. This notice will be finalized in consultation with Law/Legal Dept. The notice should also contain a copy of the prescribed format and details on eligibility/disqualification criteria as per Dealer Selection Guidelines in vogue. The proposal received from the Partner(s) will be examined for processing reconstitution of the Dealership by the Divisional/Territory/Regional Office in-charge. indicating the dealership) In such cases the OMC concerned will also issue a suitable notice in the newspaper (cost of notice that to be borne by application has been received for reconstitution of the dealership favour of applicants and seeking response/objection, if any, for such reconstitution from the concerned partner(s)/their legal heir(s) [If the partner(s) have expired] within a time period of 30 days. Additionally, the Notice should be sent under Regd/AD Post to the last known address of the in Page 4 of 7 // 5 // partner(s). This notice will be finalized in consultation with Legal/Law Deptt. In case no objection is received within the time period specified, the proposal received from the the remaining partner(s) will be scrutinized by Divisional/Territory/Regional Office in-charge and put up to a three member committee, nominated by the State Head/Retail Head of State/Zonal Head. Recommendation of the committee should be forwarded to the State Head/Retail Head of State/Zonal Head for final decision. New dealership agreement will be signed with dealer(s) subject to approval by State Head/Retail Head of State/Zonal Head and after taking suitable indemnity (Annexure-M2) from the dealership. In case where objection is received from absentee/exited partner(s)/their legal heir(s) [if the partner(s) have expired] and/or in case the remaining partner(s) fail to submit a suitable proposal to the satisfaction of the OMC, further action should be initiated as per provisions made under clause no. G (9) of this policy.” He, therefore, submits that when the guidelines for reconstitution of the dealership are in place and the documents showing reconstitution of the dealership by the Petitioners have already been published, the BPCL should take a decision in that regard within the time stipulated therein and in no case beyond 90 days from the date of submission of the proposal as per Clause-M of the guidelines, which reads as under: “M. TIMELINES FOR DISPOSAL OF APPLICATIONS: All proposals should be disposed of within 90 days of receipt of complete proposals. Reasons for delay, if any, will have to be recorded at each stage. Divisional/Territory/Regional Office in-charge, Retail Head of State/Business Plan Manager (Retail)/Zonal Coordinator NWP of IOC/BPC/HPC, as applicable, will periodically review and furnish MIS giving details of cases cleared and pending beyond allowed timelines with reasons for delay and plan for disposal. Page 5 of 7 // 6 // State Head/Retail Head of State/Zonal Head of IOC/BPC/HPC, as applicable, will also periodically review the progress and status of cases pending at different stages and take corrective action to ensure at the earliest. Under no circumstances, any proposal should remain pending with Corporation for more than 90 days.” He, therefore, prays for a direction to the Opposite Parties to take a decision on the proposal submitted by the Petitioners at the earliest. 4. Mr. Pattnaik, learned counsel for BPCL objecting to the submission made by Mr. Mukherji, learned Senior Advocate contends that the plea that some of the descendants of late Krushna Chandra Jena are not traceable, is not correct. Their address has been given at para-22 of the counter affidavit. Without making any endeavor to obtain NOCs from them, the Petitioners are pressing hard to take a decision on their application. He, however, submits that there is no difficulty on the part of the Oil Company, namely, BPCL, to take a decision on the proposal submitted by the Petitioners for reconstitution of dealership in terms of the guidelines, as stated above. 5. Considering the submissions made by learned counsel for the parties, this Court is of the considered opinion that when a proposal has been submitted by the Petitioners for reconstitution of dealership furnishing partnership deed dated 28th September, 2018 and other documents, there should not be unreasonable delay on the part of BPCL to take a decision on such proposal in accordance with law and in terms of the guidelines treating other two legal heirs as not traceable. Page 6 of 7 // 7 // 6. Accordingly, this writ petition is disposed of with a direction to the Opposite Parties, more particularly Opposite Party No.l-Territorial Manager (Sales) Retail of BPCL, to take a decision on the proposal submitted by the Petitioners as expeditiously as possible preferably within a period of two months hence, giving opportunity of hearing to the Petitioners, if so required and communicate the decision thereof to the Petitioners forthwith. If there is any deficiency in the proposal submitted by the Petitioners for reconstitution of the dealership, they should be given reasonable opportunity to reconcile/comply with the same within such time as would appear just for BPCL. Till disposal of the proposal, as aforesaid, interim order dated 5th July, 2023 passed in I.A. No. 7789 of 2023 and order dated 12th September, 2024 passed in I.A. No.9609 of 2024 shall continue. 7. It is made clear that this Court has not expressed any opinion on the merits of the case of either of the parties. Urgent certified copy of this order be granted on proper application. bks (K.R. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: BIJAY KUMAR SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Nov-2024 14:37:39 Page 7 of 7