D.N.PATEL,J. - (1.) This Letters Patent Appeal has been preferred against the judgment and order dated 26th March, 2015 delivered by the learned Single Judge in W.P.(C) No. 7084 of 2012, whereby the petition preferred by this appellant was dismissed and the order dated 10th September, 2013 of termination of the Indane distributorship Agreement dated 22nd March, 2012 for distribution of Liquefied Petroleum Gas was held as a valid one and hence the original petitioner has preferred this Letters Patent Appeal.
(2.) FACTUAL MATRIX An advertisement was issued in the year 2010 under the 'Rajiv Gandhi Gramin L.P.G. Vitarak Yojana' for the Indane distributorship of Liquefied Petroleum Gas for several places in the State of Jharkhand including Kuru, District Lohardaga for Open category. This advertisement is at Annexure 1 to the memo of this Letters Patent Appeal. An application was preferred by this appellant in proper format ( Annexure 2 to the memo of this Letters Patent Appeal) in which it has been categorically stated by this appellant that the location of the Rajiv Gandhi Gramin Liquid Petroleum Gas Vitaran is at Kuru. It has also been stated by this appellant in the said application that the location of the land for the LPG Godown is at Village Rajrom, P.S. Kuru, District Lohardaga. Even survey number was given and map was also attached. Aforesaid information was furnished in column No. 9 of the said application at Annexure 2. Thus, neither there was any misrepresentation by this appellant about the location of the land for the LPG Godown nor any fraud was played by this appellant. The facts stated in the application (Annexure 2) made by this appellant was duly verified by the Respondent No.2 - Indian Oil Corporation Limited. Format of the Field Verification Report is at Annexure 5 to the memo of the Letters Patent Appeal. Looking to the Clause 9 of the said format at Annexure 5, it appears that physical verification of the land for the godown was to be done by the officers of the Respondent No.2, Indian Oil Corporation Limited and in case the land was not found suitable then it could have been changed by the applicant so as to make him eligible for the distributorship. It appears that the Indian Oil Corporation, on field verification, never found the land for the godown unsuitable because had there been any suggestion by the Indian Oil Corporation for any other location of the land for the godown, this appellant would have changed the location of the Godown, but, even after verification never such objection was raised by the Respondent No. 2 -Indian Oil Corporation Ltd. Thereafter, distributorship was granted to this appellant on 22nd March, 2012. This appellant continued with the LPG Distributorship and later on, after show cause dated 31st October, 2012 was issued by the Indian Oil Corporation, it was terminated on 10th September, 2013 vide order at Annexure 6 to the memo of this Letters Patent Appeal on the ground that the reply to the show -cause is not satisfactory and the godown ought to have been situated at Village Kuru, whereas the godown of this appellant is at village -Rajrom in the Block -Kuru,District Lohardaga and it has also been stated in the termination order that there is a violation of Clause No. 27(i) of the agreement dated 22nd March, 2012. Initially against the show -cause dated 31st October, 2012, W.P.(C) No. 7084 of 2012 was preferred and later on order of termination dated 10th September, 2013 was also challenged by this appellant in the same Writ Petition, i.e. W.P.(C) No. 7084 of 2012 vide I.A. No. 7335 of 2012 and as the writ petition was dismissed by the learned Single Judge vide order dated 26th March, 2015, original petitioner has preferred this Letters Patent appeal.
(3.) ARGUMENTS CANVASSED BY THE APPELLANT (ORIGINAL PETITIONER): Counsel for the appellant -original petitioner submitted that in pursuance of the public advertisement for the distributorship of L.P.G. Gas (Indane)(Annexue 1 to the memo of this Letters Patent Appeal) this appellant preferred an application in the format prescribed by the Respondent No.2 - Indian Oil Corporation Ltd. The said application form is at Annexure 2 to the memo of this Letters Patent Appeal and neither there is suppression of any material fact nor any misrepresentation or any wrong statement of fact in the said application. The address of the godown for LPG Distribution is mentioned as village Rajrom, Police Station Kuru, District Lohardaga in Clause 9 of the said application form. These facts were also verified by the officers of the Indian Oil Corporation Ltd. as per Format of the Field Verification (Annexure 5 to the memo of this Letters Patent Appeal) and never any objection was raised about the location of the land of the godown. As per Clause 9 of the Format of Field Verification, had there been any objection raised by the Indian Oil Corporation about suitability of the site for the godown, then an opportunity would have been given to this appellant to change the location of the godown. In the present case, the godown is situated within the Block Kuru where distribution of Liquefied Petroleum Gas under 'Rajiv Gandhi Gramin Liquid Petroleum Gas Vitaran' is to be made. It is also submitted by the counsel for the appellant (original petitioner) that Kuru is both Village and Block in the district Lohardaga. As per the advertisement in question, the location of the godown for the distributorship of the Liquefied Petroleum Gas should be at Kuru and hence the godown situated at village Rajrom, a village situated within the local limits of Police Station -Kuru, does not fall short of the requirements of the advertisement in question ( Annexure 1 to the memo of this Letters Patent Appeal).This aspect of the matter has not been properly appreciated by the learned Single Judge while dismissing W.P.(C) No.7084 of 2012 vide order dated 26th March, 2015. It is further submitted by the counsel appearing for the appellant (original petitioner) that this appellant has never made any false statement in his application. There is also no misrepresentation on the part of the appellant in the said application. No fraud has been played by this appellant upon the Respondent No. 2 -Indian Oil Corporation Ltd. Moreover, the facts stated in the application were also verified by the high ranking officers of the Indian Oil Corporation Ltd. as per the Format for Field Verification, which is Annexure 5 to the memo of this Letters Patent Appeal and as per Clause 9 of this Format for Field Verification, if the site or the land of the Godown is not suitable, an opportunity ought to have been given to this appellant to change the location of the godown, meaning thereby the location of the godown can be changed by the applicant upon objection raised by the Indian Oil Corporation Ltd. In fact, physical verification was made of the godown of this appellant, but, no objection was raised by the Indian Oil Corporation Ltd. and thereafter, the L.P.G. distributorship was granted on 22nd March, 2012 and thereafter, Notice was issued and ultimately the distributorship agreement was terminated on 10th September, 2013 only on the ground that the land for the godown was not situated within village Kuru. In fact, the Godown is situated within the local limits of Police Station Kuru, but, in Village -Rajrom, which is absolutely adjacent to village Kuru and this fact was highlighted in the application of the applicant which was verified by the officers of the Indian Oil Corporation Ltd. and they surely have not found anything much objectionable, otherwise, a chance would certainly have been given to the appellant to change the place or location of the godown as per Clause 9 of the Format for Field Verification. This aspect of the matter was not appreciated by the learned Single Judge and hence judgment and order dated 26th March, 2015 delivered by the learned Single Judge in W.P.(C) No.7084 of 2012 deserves to be quashed and set aside. It is further submitted by the counsel for the appellant that in the Show - cause Notice dated 31st October, 2012 served upon the applicant (appellant herein), which is at Annexure 9 to the supplementary affidavit filed by this appellant, it has never been stated that distributorship will be terminated on the ground of breach of Clause No. 27(i) of the Agreement dated 22th March, 2012, whereas, in the termination order of the distributorship it has been recorded that this appellant has committed a breach of Clause No. 27(i) of the agreement dated 22nd March, 2012, which refers to the consequences of giving unauthorised connections by the Distributors. Thus, the termination order dated 10th September, 2013 (Annexure 6 to the memo of this Letters Patent Appeal) is traveling beyond the show -cause Notice dated 31st October, 2012 (Annexure 9 to the supplementary affidavit). This aspect of the matter has also not been properly appreciated by the learned Single Judge. It is further submitted by the counsel for the appellant that if there is violation of any clause of the agreement, it is Clause No. 27(l). This presumption is without any admission. However, even looking to the said Clause, i.e. Clause No. 27(l) of the agreement dated 22nd March, 2012, it appears that no show -cause Notice has ever been given for the alleged breach of Clause No.27(l). Moreover, there has been no violation of the said Clause No. 27(l) even, because Clause No.27 (l) of the agreement dated 22nd March, 2012 permits the Indian Oil Corporation Ltd. to terminate the distributorship in case any untrue or incorrect fact is being supplied by this applicant, but again, as stated hereinabove, as per the application form,which is at Annexure 2 to the memo of this Letters Patent Appeal, no incorrect or misleading information have been supplied to the Indian Oil Corporation Ltd. about the location of the land for the godown. On the contrary, these facts were verified by the high ranking administrative officers of the Indian Oil Corporation Ltd. in terms of the Format of Field Verification(Annexure 5 to the memo of this Letters Patent Appeal), especially Clauseno. 9 thereof and no objection has ever been raised by the Indian Oil Corporation Ltd. about the location of the land for the godown, otherwise Indian Oil Corporation Ltd. would have given an opportunity to this appellant for change of the location of the godown. In fact, if the location of the godown can be changed as per clause 9 of the Format for Field Verification,it is suggestive of the fact that location of the godown is not Sine qua non for a particular place otherwise the application of this appellant would have been rejected on the very same ground. On the contrary, even after Field Verification no objection was ever raised and distributorship was granted on 22nd March, 2012. Counsel appearing for the appellant submitted that even today if an opportunity is given to change the location of the godown, this appellant is ready with a new site for the godown as per the specification of the Indian Oil Corporation Ltd., but, the Indian Oil Corporation Ltd. has terminated the distributorship agreement without giving any opportunity to this appellant for change of the location of godown. Moreover, the order of termination is travelling beyond the show -cause Notice. These aspects of the matter have not been properly appreciated by the learned Single Judge while dismissing the writ petition and hence, the judgment and order dated 26th March, 2015 delivered by the learned Single Judge in W.P.(C) No. 7084 of 2012 deserves to be quashed and set aside. Counsel appearing for the appellant has also relied upon the decision rendered by the Hon'ble Allahabad High Court in W.P.(C) No. 28633 of 2013 which was allowed vide order dated 9th July, 2013, copy whereof has also been given to the counsel for the Indian Oil Corporation Ltd. As per this decision rendered by the Hon'ble Allahabad High Court, the showroom was to be situated within location as Auraiya. Here, Auraiya is also a district. Insistence was made by the Indian Oil corporation Ltd. that the show -room ought to have been within the local limits of Auraiya, whereas Hon'ble the Division Bench of Allahabad High Court has held that Auraiya is also a district and hence there is no violation even outside the Municipal limits of Auraiya. This judgment of the Allahabad High Court was challenged by the Indian Oil Corporation Ltd. before Hon'ble the Supreme Court in Special Leave Petition(Civil) No. 35206/2013, which was dismissed by Hon'ble the Supreme Court vide order dated 2nd December, 2013. The Judgment dated 9th July, 2013 of the Division Bench of Allahabad High Court as well as copy of the order dated 2nd December, 2013 passed in a Special Leave Petition, which is tendered by the counsel for the appellant, is taken on record. In the facts of the present case also the location of the land of the godown is insisted in the village Kuru, whereas in the application itself it was mentioned that the location of the land for the godown is at village Rajrom, which is situated within the local limits of P.S. Kuru, Block Kuru, district Lohardaga and as per the Format of Field Verification report at Annexure 5 to the memo of this Letters Patent Appeal, especially clause 9 thereof, in case any objection was raised by the Indian Oil Corporation, then opportunity could have been given to the appellant for change of location of the godown and the appellant could have offered another site for the godown. The appellant is ready even today to offer another land for the godown if the Indian Oil Corporation Ltd. gives an opportunity as per Clause 9 of the Format prescribed for Field Verification (Annexure 5 to the Memo of the Letters Patent Appeal). Counsel appearing for the appellant has also relied upon the decision rendered by Hon'ble the Supreme Court in Civil Appeal No. 4815 of 2016 (Md. Zamil Ahmed Vs. The State of Bihar and Ors.), which is dated 5th May, 2016 and with reference to paragraph 22 of the said decision, it is submitted by the counsel for the appellant that on the basis of the aforesaid decision, Indian Oil Corporation Ltd., which is a State within the meaning of Article 12 of the Constitution of India, cannot take advantage of its own mistake. If objection was raised as per Clause 9 of Format for Field Verification (Annexure 5 to the memo of this Letters Patent Appeal),this appellant would have changed the place of godown. This aspect of the matter has also not been properly appreciated by the learned Single Judge and hence, the judgment and order dated 26th March, 2015 delivered by the learned Single Judge in W.P.(C) No. 7084 of 2012 deserves to be quashed and set aside. ;