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TMI Blog2004 (2) TMI 706X X X X Extracts X X X X X X X X Extracts X X X X ..... ointed agent by the appellant for dealing with kerosene oil on behalf of the said oil company. In terms of the said agreement appearing at pages 115 to 117 of the Paper Book the said proprietorship concern was granted agency in respect of Dhakshin Para, Barisha in the town of Kolkata . The proprietorship concern was subsequently converted into a partnership firm and fresh agreement was entered into by the parties on February 28, 1994 appearing at pages 122-129 wherein the area mentioned was as follows : Behala/Barisha P. S. Behala/P. S. Thakurpukur in the district of 24-Parganas (South) West Bengal . 3. Subsequently in the year 2000 four separate agreements were entered into by and between the parties on February 14, 2000 appearing at pages 138 to 145. In one of such agreements the area was described as Behala in the district of 24-Parganas (South). The other three agreements related to other three spots. However, the Barisha was not mentioned in any of the four agreements. 4. The respondent immediately moved this Court as and by way of writ petition being AST No. 610 of 2000 inter alia complaining that the four agreements were entered into by the oil company for Behal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner appeared. In the said meeting it was unanimously decided as follows : 1. All attempts will be made to tag dealers with the agents as per existing quota fixed by the oil company. However, the excess R/C of dealers tagged with the agents, who were already having the allocation of 250 KL per month would be deliked from the existing agents and tagged with other agents whose allocation are below 250 KL. The quota of the agents with whom the dealers are tagged will thus be enhanced but in any case the quota of the said agent will not except 250 KL. 2. The cases of the agents having monthly quota of more than 250 KL. per month should be reviewed by the oil companies in consultation with Government so that in no case the ceiling of 250 KL. is violated. 3. In the interest of viability, no agent should be given a quota of less than 75 KL. per month. Appropriate adjustment in respect of tagging of dealers/R.C. should be made. Keeping this principle in view, 4. District Controller, 24-Parganas (South) should ensure permanent tagging of ration cards with the agents under intimation to the D.C.G. and the concerned oil companies. 5. In the exigency of circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith regard to Barisha the supply was being continued. Similarly there were discrepancies in respect of supplies made to other agents. Steps were also taken to rectify those mistakes. The oil company by way of rectification of their mistake withdrew the quota allotted to the respondent in respect of Barisha unit and redistributed the same pro rata amongst other existing agents by following the bench mark of 250 KL. The respondent was also benefited by such process and their quota in respect of other four units were also re-adjusted by following bench mark of 250 KL. 8. Challenging the cancellation of the quota in respect of Barisha the present writ petition was filed by the respondent No. 1. In the writ petition it was contended that the oil company was supplying kerosene oil at Barisha unit since 1960 and withdrawal of such allotment that too without giving any opportunity of being heard was illegal and was violative of the principles of natural justice. Reliance was placed by the respondent No. 1 in this regard oh the decision of the Apex Court in the case of Mahabir Auto Stores and Ors. v. Indian Oil Corporation and Ors., reported [1990] 1 SCR 818 . The writ petition was heard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contended that the supply could not be discontinued without giving opportunity of being heard. 13. He also relied on the following Apex Court decisions : Madan Lal 'Dhartipakar' v. Neelam Sanjeeva Reddy and Ors., reported in [1978] 3 SCR 465. [1975] 2 SCR 42 (Godhra Electricity Co. Ltd. and Anr. v. State of Gujarat and Anr.) 1991 ECR 11 (SC) (Indian Metals Erro Alloys Ltd. Cuttack v. Collector of Central Excise, Bhubaneshwar) AIR 1992 SC 564 (N. Suresh Nathan and Anr. v. Union of India and Ors.) 1989 Sup-1 Supreme Court Cases, page 144 (Collector of Central Excise, Guntur v. Andhra Sugar Ltd. Venkataraypurama) 14. The learned Advocate General appearing for the State contended that the State was interested in uniform distribution of kerosene oil so that the ration card holders got their regular supply through the public distribution system. The learned Advocate General also contended that in Barisha the respondent No. 1 was the only agent and because of stoppage of supply at Barisha point the public at large residing at the said area were affected. The learned Advocate General lastly contended that the State was not interested as to who was appointed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in the earlier agreements Barisha was mentioned and supply was affected at Barisha when in 2000 agreement Barisha was not mentioned even then supplies were made at Barisha. Such supply was contrary to the terms of the agreement and as such the oil company was entitled to rectify their mistake and this decision can not help the respondent No. 1 in the facts and circumstances of this case. (v) AIR 1992 SC 564 (N. Suresh Nathan and Anr. v. Union of India and Ors.): Paragraph 4 of this judgment was relied by Mr. Banerjee. In this decision the Apex Court recognized the age old practice followed in the case of promotion. The Apex Court came to conclusion that if the past practice was based on one of the possible constructions of the rules the other construction upsetting the age old practice was not permissible. In the instant case in view of unambiguous terms of the agreement of 2000 there can not be two opinion that the supply so long made after execution of the 2000 agreement was completely contrary to the agreement and this decision in our view does not fit in the facts and circumstances of the present case. MAHABIR AUTO (SUPRA): 16. Now comes the case of Mahabir Auto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d circumstances of the case, as the appellants were seeking to invoke the right flowing from an utter irregularity specially when the company had been made publically accountable especially when the company does not act unless through a written contract as also when only authorised . 17. From the analysis of the facts as discussed by the Apex Court and reproduced hereinbefore it would appear that the oil companies were selling the lubricants to persons who would apply for the same. There was no set procedure for sale of those lubricants through any authorized dealer or agent. Moreover the oil company had categorically reserved its right to revise or cancel any order for supply without any intimation or assigning any reason. In these facts the Apex Court came to conclusion that when the said procedure was being followed by the oil companies sudden stoppage of sale without any reasonableness and that too without giving any notice can not be held to be justified. 18. In the instant supply was being affected by virtue of the agreement entered into by and between the parties. Under the agreement the respondent No. 1 was not entitled to supply at Barisha. 19. Let us now conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting found out their mistake and rectified the said mistake to implement the true spirit of the resolution taken in the said meeting held on May 2, 2002 wherein the respondent No. 1 was a party. Hence, in my view, the principles laid down in the case of Mahabir Auto (supra) would not in any way help the respondent No. 1 in the peculiar facts and circumstances of this case as discussed hereinbefore. I am constrained to say that the learned Judge did not approach the problem in right direction while applying the ratio laid down in the case Mahabir Auto (supra). 22. The matter may be viewed from another angle. If a person enjoys a benefit de hors his right conferred by statute or by agreement he cannot claim continuation of the same and the other party is entitled to rectify such mistake and/or wrong. In the instant case since the oil company on an enquiry found that the supplies at Barisha was being made independently of the quota allotted to the respondent No. 1 in respect of Behala de hors the agreement entered into by and between the parties they were entitled to rectify their own mistake and/or wrong to prevent further wrong. If we allow the respondent No. 1 to enjoy independe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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