w w w . L a w y e r S e r v i c e s . i n



M/s. Deepak Automobiles v/s Bharat Petroleum Corporation Limited

    Letters Patent Appeal No. 1673 of 2019, Special Civil Application No. 11707 of 2014 & Civil Application (For Stay) No. 1 of 2019

    Decided On, 30 July 2021

    At, High Court of Gujarat At Ahmedabad

    By, THE HONOURABLE MR. JUSTICE R.M. CHHAYA & THE HONOURABLE MR. JUSTICE NIRZAR S. DESAI

    For the Appearing Parties: Harnish V. Darji, Mitul K. Shelat, Advocates.



Judgment Text

R.M. Chhaya, J.

1. Feeling aggrieved and dissatisfied by the judgment and order dated 26.08.2019 passed by the learned Single Judge in SCA No. 11707 of 2014, the original petitioner has preferred this appeal under clause 15 of the Letters Patent.

2. The following facts emerge from the record of this appeal -

2.1 That the dealership agreement came to be executed between the appellant and respondent oil company on 01.10.2008. As can be seen from the record of the appeal, the retail outlet was examined by various authorities from time to time. As per the case of the appellant, such inspections were carried out on 24.12.2012, 31.05.2013 and 05.06.2013 and the same were found to be perfectly in order.

2.2 As the facts reveal, one such inspection took place on 31.05.2013, which was a surprise visit and inspection was done by the Sales Officer, Ahmedabad City and certain irregularities were found and as per the note prepared by the Territory Manager (Retail), the inspection was thereafter scheduled on 05.06.2013 to be carried out by Sales and Engineering Officer, Ahmedabad City for restamping of the nozzles. During the inspection, it was found that some of the Pulsar Assembly of MPD were tampered with and it was also found that additional wires and fittings were attached below the circuit board and resultantly, the officers of the oil Company sealed the retail outlet and sales were stopped as per the report dated 05.06.2013.

2.3 A show-cause notice came to be issued on 24.06.2013, which was replied by the appellant on 19.07.2013, which culminated into a termination order dated 11.02.2014. The said order came to be challenged by the appellant by filing writ petition being SCA No. 2471 of 2014 before this Court, which came to be disposed of vide order dated 21.02.2014 directing the appellant to file appeal as provided under clause 8.9 of the Marketing Discipline Guidelines, 2013 and also file an application for supply of petroleum products till the appeal is decided. The learned Single Judge was also pleased to further direct the appellate authority to decide the appeal in accordance with law keeping in mind clause 8.9 of the Guidelines and relevant record of the case. Such order was passed by the learned Single Judge of this Court by further clarifying that the Court has not gone into merits leaving it open for all the parties to raise all contentions before the learned appellate authority.

2.4 On 23.08.2014, the respondent oil company took over possession of the retail outlet. The appeal filed by the appellant under clause 8.9 of the Marketing Discipline Guidelines, 2013, came to be dismissed vide order dated 19.08.2014 and being aggrieved by the same, the appellant preferred writ petition being SCA No. 11707/14.

2.5 Even though opportunities were given to the learned advocate appearing for the appellant, as the matter was pending for five years, the learned Single Judge was pleased to fix the matter on 26.08.2019 for hearing it specially at 2.30 PM. Even at that moment, the learned advocate appearing for the appellant did not remain present before the learned Single Judge. The learned Single Judge after considering the material on record and hearing the learned counsel appearing for the oil company, was pleased to dismiss the petition and hence, this appeal.

3. Heard Mr. Zubin Bharda, learned advocate for and on behalf of Mr. Harnish Darji, learned advocate for the appellant and Mr. Mitul Shelat, learned advocate for the respondent oil company.

4. Mr. Zubin Bharda, learned advocate for the appellant has raised the following contentions -

1) That on the date when the surprise visit was made on 31.05.2013, at that time, the seals were found intact. It was contended that once the seals are found intact during the inspection, thereafter anything is found in machine, the same cannot be attributed as an irregularity having been committed by the appellant.

2) Mr. Bharda, learned counsel appearing for the appellant further contended that on 05.06.2013, another joint inspection was carried out by the officers of the oil company as well as Gilbarco and also invited attention of this Court to the fact that as per the retail outlet inspection report, the variation which was found was not more than permissible limit.

3) Mr. Bharda, learned counsel also further referred to the said report and submitted that even the delivery system was found to be OK. It was thus contended by Mr. Zubin Bharda that even on 05.06.2013, in the joint inspection, what was found was within the permissible limit.

4) It was lastly contended by Mr. Bharda that the impugned judgment and order passed by the learned Single Judge is passed without giving an opportunity of being heard to the appellant.

On the aforesaid grounds, it was contended by Mr. Bharda that the appeal requires consideration and the impugned judgment and order passed by the learned Single Judge as well as passed by the appellate committee deserves to be quashed and set aside. According to Mr. Bharda, no such irregularities have been noticed, which warrants cancellation of the dealership.

5. Per contra, Mr. Mitul Shelat, learned advocate appearing for the respondent oil company has supported the impugned order passed by the appellate authority as well as the learned Single Judge. Relying upon the judgment of the Apex Court in the case of Managgement of Narendra and Company Pvt. Ltd. Vs. Workmen of Narendra and Company, (2016) 3 SCC 340, it was contended by Mr. Shelat that in an intra court appeal, the scope is very limited. It was contended by Mr. Shelat that unless the Hon'ble Division Bench concludes that the findings of the Single Judge were perverse, it shall not disturb the same. Mr. Shelat further contended that ample opportunities were given to the learned advocate appearing for the appellant before the learned Single Judge and on the contrary, the appellant has not bothered to appear before the learned Single Judge and hence, the appellant now cannot be permitted to raise the contention that the appellant was not heard by the learned Single Judge. Mr. Shelat therefore contended that the appeal being meritless, deserves to be dismissed.

6. Considering the contentions raised by the learned counsel appearing for the parties that the learned Single Judge has not heard the learned advocate for the appellant, it clearly transpires that the writ petition was pending since 2014. As noted by the learned Single Judge, though specifically, the matter was specially fixed at 2.30 PM board, the learned advocate appearing for the appellant for whatever reasons did not think it fit to appear and argue the case. Principles of natural justice is not an unruly horse and the appellant cannot be permitted to conduct a particular matter when he thinks it fit. It was the bounden duty of the learned advocate to either request the Court for some time or appear and argue the matter on merits. It cannot be said that no opportunity was given to the appellants. However, the appellant having failed to take the opportunity of hearing, cannot now be permitted to say that the learned Single Judge has not given opportunity of being heard. We find that the learned Single Judge has considered the grounds raised in the petition and material on record, which are reiterated by the learned counsel for the appellant before us and has arrived at the finding of fact based upon the finding of fact in the order passed by the appellate authority under clause 8.9 of the Marketing Discipline Guidelines, 2013. The learned cousnel for the appellant has failed to even remotely show any prejudice caused to the appellant-original petitioner. Therefore, the said contention raised by Mr. Bharda, learned counsel appearing for the appellant deserves to be negatived.

7. Purity and maintenance of standards laid down by the Central Government as well as the oil companies are required to be strictly adhered to by the dealer, which is a part of the conditions attached to the dealership agreement. No irregularities beyond permissible limit can be permitted or pardoned or condoned. In order to appreciate the contention raised by the learned counsel appearing for the appellant, it would be apt to refer to the irregularities, which were found during the surprise joint inspection which was carried out on 05.06.2013, which are narrated by the appellate authority as well as by the learned Single Judge and we deem it proper to refer to the same. The learned Single Judge has observed thus in para 7 for the irregularities which were detected by the retail team on 05.06.2013 -

"i. The Pulsar assembly of MPD1, Hi-speed Nozzle A3, MS Nozzle, B2, Speed Nozzle B1, Hi-speed Nozzle B3 and HSD Nozzle B4, pulsars were tampered.

ii. The Pulsar assembly of MPD1, Speed Nozzle A1, MPD1, MS Nozzle A2, MPD1, HSD Nozzle A4, were not only tampered, but there were additional wires and fittings attached below the circuit board too. Housed inside the Pulsar assembly.

iii. The Joint observation note of the Ahmedabad team (Retail), Company Fitter's report and Gilbarco Veeder root's Engineer's report dated 05.06.2013 confirms that there was "Electronic Pulsar Card tampering" along with "additional fittings".

iv. All the pulsar assembly and the additional fittings along with the circuit board were taken into custody. The pulsar assembly was not found sealed at the time of the inspection. The MPD was sealed at totalizer readings as per the ROIR report on date. The seal number of the random plastic seals used to seal MPD1 were 9216397 and 9216292."

8. The same is based on the finding of fact arrived at by the appellate authority. It is a matter of fact that serious irregularities were found. The nozzle were found to be tampered. It was found that the additional wires and fittings were attached below which would affect the quantity of supply. The report also shows that there was tampering with the Electronic Pulsar Card along with additional fittings and on such cogent evidence on record, the appellate authority as well as the learned Single Judge have come to the conclusion that the appellant has failed to observe and perform the stipulation of dealership agreement, which otherwise appellant is supposed to. It is found from the order passed by the appellate authority as well as the learned Single Judge that the findings of fact arrived at by the decision making authority while passing the orders impugned, terminating the dealership, is based upon cogent material and evidence on record. We also find that the learned Single Judge has appreciated the difference between tamp

Please Login To View The Full Judgment!

ered device and original device, i.e., pulsar chip and came to the conclusion that there is no error in the concurrent finding of fact arrived at by the order passed in appeal and the original order passed by the authority. 9. The reliance placed upon the report dated 05.06.2013 by the learned counsel appearing for the appellant can be termed as erroneous reading of the same. We on the contrary find that the appellate authority as well as the learned Single Judge have threadbare discussed the evidence on record and has come to the conclusion that serious irregularities were found on 05.06.2013. The attempt to over simplify such serious irregularities while dealing with essential items like petrol and diesel as irregularities within permissible limit cannot be countenanced. Thus, the findings arrived at by the authorities below as well as the learned Single Judge do not require to be interfered with. It cannot be said that the findings arrived at by the learned Single Judge are perverse in any manner. No case for interference is made out. The appeal therefore fails and is hereby dismissed. No costs. As the appeal is dismissed, connected Civil Application also stands dismissed.
O R