1988 Supreme(MP) 482

IN THE HIGH COURT OF MADHYA PRADESH
P.D. MULYE, S.K. DUBEY, JJ.
Habib Nathu - Petitioner
Vs.
Indian Oil Corporation - Respondents
M.P. No. 65 of 1988 (I)
Decided On : 09-08-1988

Headnote:Constitution of India – Arts. 226 and 227 – disputed questions of fact raised – alternative remedy available – writ petition not maintainable.

        Short Note

       1. The petitioner, by an agreement, Annexure – P – I dated 31 – 3 – 1973 was appointed as a Petrol/HSD pump dealer in village Rahurkhedi by respondent No. 1 namely the Indian Oil Corporation Limited. As the said agreement was terminated, vide Ex. P – 9 dated 5th May, 1987 the petitioner has filed this petition under Arts. 226 and 227 of the Constitution of India with a prayer that the same deserves to be quashed as no valid grounds are made out by the respondents for terminating the said contract.

       Held : The learned counsel for the petitioner submitted that even though according to clause 61 the respondents have a right to pay to the petitioner the price for the unutilised diesel oil lying at the premises, the petitioner is not likely to gain thereby as he will be losing his source of income. The learned counsel, therefore, relying on the decision reported in AIR 1979 Supreme Court 1682 (Ramana Bayaram Shetty v. The International Airport Authority of India) submitted that as now respondent No. 1 is an instrumentality of the State, filing of a suit will not be a proper and efficacious remedy and, thus, considering the facts and circumstances of the case this Court would entertain this petition in exercise of the writ jurisdiction.

       2. On the other hand the learned counsel for the respondents Shri S.D. Sanghi submitted that even according to the reasons given by the petitioner himself these are all disputed questions of facts, which cannot be decided in absence of any specific averment supported by evidence which can only be done and decided in a suit, where the petitioner has remedy either for chiming damages or for any other relief. He also submitted that clause 69 of the agreement refers to arbitration, which remedy is also available to the petitioner to which he has not resorted to. Therefore, according to the learned counsel even on this ground the petition docs not deserve admission and in support of this submission the learned counsel placed reliance on the decisions reported in AIR 1976 SC, 127 (M/s Bisra Stone Lime Co. Ltd. v. Orissa State Electricity Board); AIR 1977 SC 1496 (M/s Rahdakrishna Agarwal v. State of Bihar); AIR 1981 SC 1368 (Divisional Forest Officer v. Bishwanath Tea Co. Ltd.); AIR 1975 Patna 123 (M/s Shree Krishna Gyanoday Sugar Ltd. v. The State of Bihar); AIR 1977 Patna 65 (M/s Radha Krishna Agarwal v. State of Bihar); AIR 1980 Delhi 88 (M/s Jasjeet Films v. Delhi Development Authority); AIR 1984 Delhi 246 (Mangat Ram, Delhi v. Delhi Development Authority) and AIR 1987 Delhi 146.

       3. Thus, after hearing the learned counsel and after considering the facts and circumstances of the case as also the case law cited, we are of opinion that the Supreme Court decision reported in AIR 1979 SC 1628 (Supra) on which the learned counsel for the petitioner has placed reliance does not help him in the present case. On the contrary, the authorities cited by the learned counsel for the respondents support the stand taken by the respondents. It is apparent from the nature of the controversy raised by the petitioner that the dispute relates to factual matters as have been mentioned above. Admittedly, it is not the case of the petitioner that there is any breach of statutory or public duty by the respondents nor any mala fides as such have been attributed to the respondents. Even the words "since Aug. 1, 1981 till date" mentioned in Annexure – P. 9 on which the learned counsel for the petitioner tried to put his interpretation, being also disputed, cannot be taken into consideration and decided in a writ petition. It is, therefore, apparent that the main grievance of the petitioner has been that there has been a breach of the agreement by the respondents on flimsy grounds, without giving him a chance of hearing to the petitioner before issuing the impugned order Annexure – P.9. Thus, in our opinion, there are many disputed questions of facts which cannot be decided in a writ petition. According to the learned counsel for the respondents there is no dispute, whereas according to the learned counsel for the petitioner there is a dispute which according to clause 69 of the ,agreement has to be decided by arbitration. Therefore, that remedy is also available and open to the petitioner. AIR 1979 SC 1682 distinguished. AIR 1976 SC 127, AIR 1977 SC 1496, AIR 1981 SC 1368. AIR 1975 Pat. 123, AIR 1977 Pat. 65, AIR 1980 Delhi 88, AIR 1984 Delhi 246 and AIR 1987 Delhi 146 relied on. Petition dismissed.