# M/S Pandit DamberLal Bhagirathi Filling Station District Bulandshahr v. U.O.I. & Ors

- **Citation:** (2023) 12 ILRA 641
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-30
- **Case number:** Writ-C No. 9028 of 2022
- **Bench:** Mahesh Chandra Tripathi, Prashant Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-pandit-damberlal-bhagirathi-filling-station-district-bulandshahr-v-u-o-i-ors-49494
- **Pages:** 10

## Headnote

A.S.G.I., Sri Anand Tiwari, Sri Brijesh
Kumar, Sri Deepesh Kumar Ojha, Sri
Saurabh Yadav, Sri Rakesh Kumar, Sri
Anand Tiwari, Sri Deepak Kumar Ojha, Sri
Neeraj Triipathi (Sr. Adv.)

A. Civil Law - Constitution of India,1950Article
226-
the
dealership
of
the
petitioner
was
terminated
by
IOCLpetitioner uncle made a complaint to the
IOCL that the petrol pump is situated at
ancestral land and there is no partition
and forged NOC was submitted by the
original allottee and petitioner's father
was in service hence, petrol pump could
not
have
been
allotted-In
lieu
of
settlement, the petitioner paid 17/-lakhs
to the complainant and the complaint was
withdrawn-even
after
amicable
settlement of the dispute between the
brothers, the complainant kept on writing
complaints to IOCL against the original
allottee-complainant turned greedy and
he filed writ petition for cancellation of
dealership-The IOCL was well aware of
the facts and did not take action on the
complaint earlier, hence it cannot be said
that the petitioner had got the dealership
by fraud and also IOCL is bound by
doctrine
of
acquiescence,
hence
the
impugned order is liable to be set
aside.(Para 1 to 45)

B. Apex Court held that acquiescence
would mean a tacit or passive acceptance.
When
acquiescence
takes
place,
it
presupposes
knowledge
against
the
particular act. From the knowledge comes
passive acceptance, therefore, instead of
taking action against any alleged refusal
to perform the original contract, despite
adequate knowledge of its term and
instead being allowed to continue by
consciously
ignoring
and
thereafter
proceeding further, acquiescence does
take place. (Para 39 )

The writ petition is allowed. (E-6)

List of Cases cited:

## Text

12 All. M/S Pandit Damber Lal Bhagirathi Filling Station District Bulandshahr Vs. U.O.I. & Ors. 641
(2023) 12 ILRA 641
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.11.2023

BEFORE

THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE PRASHANT KUMAR, J.

Writ-C No. 9028 of 2022

M/S Pandit DamberLal Bhagirathi Filling
Station District Bulandshahr ...Petitioner
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Rahul Pandey, Sri Rakesh Pande (Sr.
Adv.), Vishakha Pandey

Counsel for the Respondents:
A.S.G.I., Sri Anand Tiwari, Sri Brijesh
Kumar, Sri Deepesh Kumar Ojha, Sri
Saurabh Yadav, Sri Rakesh Kumar, Sri
Anand Tiwari, Sri Deepak Kumar Ojha, Sri
Neeraj Triipathi (Sr. Adv.)

A. Civil Law - Constitution of India,1950Article
226-
the
dealership
of
the
petitioner
was
terminated
by
IOCLpetitioner uncle made a complaint to the
IOCL that the petrol pump is situated at
ancestral land and there is no partition
and forged NOC was submitted by the
original allottee and petitioner's father
was in service hence, petrol pump could
not
have
been
allotted-In
lieu
of
settlement, the petitioner paid 17/-lakhs
to the complainant and the complaint was
withdrawn-even
after
amicable
settlement of the dispute between the
brothers, the complainant kept on writing
complaints to IOCL against the original
allottee-complainant turned greedy and
he filed writ petition for cancellation of
dealership-The IOCL was well aware of
the facts and did not take action on the
complaint earlier, hence it cannot be said
that the petitioner had got the dealership
by fraud and also IOCL is bound by
doctrine
of
acquiescence,
hence
the
impugned order is liable to be set
aside.(Para 1 to 45)

B. Apex Court held that acquiescence
would mean a tacit or passive acceptance.
When
acquiescence
takes
place,
it
presupposes
knowledge
against
the
particular act. From the knowledge comes
passive acceptance, therefore, instead of
taking action against any alleged refusal
to perform the original contract, despite
adequate knowledge of its term and
instead being allowed to continue by
consciously
ignoring
and
thereafter
proceeding further, acquiescence does
take place. (Para 39 )

The writ petition is allowed. (E-6)

List of Cases cited:

1. Tata Cellular Vs U.O.I. (1994) 6 SCC 651
2. St. of U.P. Vs Prem Shanker Sharma (2006)
10 ADJ 123

3. H.C. of Judicature at Bom. Vs Udai Singh
(1997) JT SC 298

4. A.V. Papayya Sastry & ors. Vs Govt. of A.P. &
ors. (2007) 4 SCC 221

5. Chandro Devi & Etc Vs U.O.I. (2017) 9 SCC 469

6. Sukh Sagar Medical College & Hospital Vs St.
of M.P. (2021) 13 SCC 587

7. U.O.I. Vs N. Murugesan & ors. (2022) 2 SCC 25

8. Bichitrananda Behera Vs St. of Ori. & ors.
(2023) INSC 902

(Delivered by Hon'ble Mahesh Chandra
Tripathi, J.
&
Hon'ble Prashant Kumar, J.)

1. Heard Shri Rakesh Pande, learned
Senior Counsel assisted by Shri Rahul
642 INDIAN LAW REPORTS ALLAHABAD SERIES
Pandey, learned counsel for the petitioner,
Shri
Neeraj
Tripathi,
learned
Senior
Counsel assisted by Shri Deepak Kumar
Ojha, learned counsel for the complainant
and Shri Rakesh Kumar & Sri Anand
Tiwari, learned counsel appearing for the
respondent nos. 2 and 3.

2. Present writ petition is preferred
under Article 226 of the Constitution of
India for quashing of the order dated
12.03.2022, whereby the dealership of the
petitioner was terminated by the Divisional
Retail Head, Noida Divisional Office,
Indian Oil Corporation Ltd. (Marketing
Division), U.P. State Office-II, E-8, Sector1, Noida.

3. Brief facts of the case are as
follows :-

4. A Petrol-Pump was allotted
through Letter of Intent (for short "LOI") to
one Shri Umesh Chand Sharma (father of
the petitioner) (for short "original allottee")
on 22.08.2005, followed by an execution of
the
Memorandum
of
Agreement
on
04.08.2008. At the time of allotment, the
respondent- Indian Oil Corporation Limited
(for short "IOCL") had a condition in the
agreement that the allottee should not be
holding the Office of Profit or if he is in
any job, he has to submit his resignation or
voluntary retirement. The petitioner, who is
son of original allottee, claimed that his
father was holding a post of Lecturer in a
Private aided College namely "Lakshman
Prasad
Anglo
Vaidic
Inter
College,
Anoopshahar,
Bulandashar"
and
on
01.10.2005,
the
original
allottee
had
submitted his application for voluntary
retirement, which was duly accepted by the
Management of the College on 10.10.2005
and was forwarded to District Inspector of
Schools (for short "DIOS") for approval. The
DIOS had rejected the said application on
29.03.2006. It is also claimed that the original
allottee had intimated the whole state of
affairs to the General Manager of IOCL and
even it was brought to the notice of the IOCL
that he had rejoined the post of Lecturer on
30.03.2006, which was duly received and
acknowledged by the General Manager of
IOCL on 23.05.2006. Later on, the original
allottee superannuated on 30.06.2009. The
IOCL had also sent a letter to the Principal of
the
College
for
confirmation
of
the
information, therefore, it is claimed that the
IOCL was in full knowledge of the above
facts. Right from the start of the petrol-pump
i.e. in the year 2005 till 2013, the petrol-pump
was running smoothly to the satisfaction of
IOCL.

5. It transpires from the record that the
brother of the original allottee namely Shri
Naresh Chandra Sharma, who is real uncle of
the petitioner, made a complaint to the IOCL
on 29.09.2014 alleging therein that the land
on which, the petrol-pump is situated is an
ancestral land and there is no partition and
forged NOC was submitted by the original
allottee for getting NOC from the IOCL. In
the said complaint, it was also alleged that
since the original allottee was in service and
hence, the petrol pump could not have been
allotted to the petitioner's father. In response
to the said complaint, the IOCL had issued a
show cause notice to the original allottee,
which was duly responded by him. It also
transpires from the record that in the
interregnum,
some
settlement
arrived
between the brothers. It is also claimed that in
lieu of settlement, the petitioner had paid
Rs. 17/- lakhs to the complainant and
accordingly, the complaint was withdrawn.
Once the complaint was withdrawn, the
IOCL closed the complaint and informed
the complainant about the same on
14.11.2014.
12 All. M/S Pandit Damber Lal Bhagirathi Filling Station District Bulandshahr Vs. U.O.I. & Ors. 643

6. Even after amicable settlement of
the dispute between the brothers, the
complainant kept on writing complaints to
IOCL against the original allottee, on
which, the IOCL had conducted inquiries at
regular intervals and found nothing adverse
against the original allottee. As per the
petitioner, these complaints were made
only to harass the original allottee and to
extract some money.

7. In the meanwhile, the dealership of
petrol-pump
was
reconstituted
on
14.11.2017 and in place of original allottee,
the name of the petitioner being a son, was
incorporated
and
thereafter,
a
fresh
agreement was also executed between
IOCL
with
the
reconstituted
firm
(petitioner's firm).

8. It is not out of place to mention that
the complainant had made five complaints,
out of which, he himself had withdrawn
two, even though, fully conscious about the
fact that the earlier complaints were
consigned to record way-back in the year
2014 itself. The complainant went to the
extent of filing a writ petition being Writ-C
No. 11080 of 2021 (Naresh Chandra
Sharma v. Union of India and 02 Others)
before the Division Bench for cancellation
of licence of the petitioner's dealership,
wherein, he had claimed himself to be
co-owner of the land. The only ground
was pressed before the Division Bench
that as no objection certificate of the coowner is required before the land is
offered for setting of the petrol-pump
and it was also alleged that the
respondent no. 3 had forged with the
NOC of the petitioner. In this backdrop,
the Court has proceeded to dispose of
the writ petition vide an order dated
26.07.2021, the same is reproduced
hereunder :-

"The petitioner claims to have
submitted
a
complaint
before
the
respondent no. 2 regarding the selection of
respondent no. 3 for running a retail outlet
- petrol pump of Indian Oil Corporation.

It is sought to be submitted that
the petitioner is co-owner of the land,
which had been offered by the respondent
no. 3 for setting up of the petrol pump. No
objection certificate of the co-owner is
required before the land is offered for
setting up of the petrol pump. It is
contended that the respondent no. 3 had
forged with the no objection certificate of
the petitioner.

Looking to the prayer made in the
writ petition without entering into the
merits of the claim of the petitioner, the
writ petition is being disposed of with the
direction that the respondent no. 2 shall
consider the complaint filed by the
petitioner and pass a reasoned and
speaking order after making due inquiry
wherein opportunity of hearing is required
to be afforded to the respondent no. 3. The
entire exercise shall be completed within a
period of two months from the date of
receipt of this order."

9. In pursuance of the aforesaid order,
the IOCL has issued notice to the
complainant on 23.09.2021 and thereafter,
on the next date, the petitioner was called
upon to submit his response. The petitioner
explained the entire state of affairs to the
IOCL who, in turn, passed an order on
27.09.2021 stating that they will take
necessary action as per IOCL policy and
guidelines
regarding
the
dealership.
Thereafter, the petitioner was served with
another show cause notice on 15.12.2021
on two grounds. Firstly, the original
allottee got the dealership in contravention
644 INDIAN LAW REPORTS ALLAHABAD SERIES
of Clause 4.3.1(g) of the "Dealership
Selection Policies & Guidelines, 2003" and
secondly, in terms of the Dealership
Agreement dated 04.08.2008, which could
have led to the termination of his dealership
for not divulging the correct facts. In
response to the aforesaid show-cause
notice, the petitioner responded in detail on
05.01.2022 and in the said response, it was
also pleaded that the original allottee had
given
an
application
for
voluntary
retirement from the institution, which was
also approved by the management of
college.
Therefore,
there
was
no
concealment of fact, even though, the same
was rejected by the DIOS. These facts were
in knowledge of the IOCL and the original
allottee continued to run the petrol-pump
without any objection by the IOCL.

10. That, from time to time, on every
complaint, the clarifications were given by
the original allottee and also by the
petitioner's firm vide registered letters
dated 24.12.2008, 21.03.2009, 26.06.2010,
12.09.2017 and 13.09.2019, even though,
considering the earlier response of the
original allottee, the IOCL itself had
dropped the complaint in the year 2014.
Later on, the fresh agreement was also
executed
between
IOCL
and
the
reconstituted petitioner's firm.

11. Even after filing a writ petition
bearing Writ-C No. 11080 of 2021, the
complainant had also filed another writ
petition bearing Writ-C No. 34430 of 2021
(Naresh Chandra Sharma vs. Union of
India and 2 others) and the Division Bench
of this Court had dismissed the writ petition
vide an order dated 02.03.2022 with
following observation:-

"......................At
present,
learned counsel for the petitioner has
vehemently urged that the respondent no. 3
was wholly ineligible to obtain retail outlet as he was deriving payment of salary
from an Educational Institution, where he
was posted as Lecturer.

In the first place, the objection raised
as to absence of No-objection Certificate
was the only objection on which direction
had been issued in the earlier writ petition
filed by the petitioner being Writ-C No.
11080 of 2021. That objection has been
decided against the petitioner by order
dated 27.09.2021. As to the further
objection being raised by the petitioner to
the ineligibility of respondent no. 3 to
obtain a retail out-let, the same may
remain a matter between the respondent
nos. 3 & 2 arising from stipulation of
contract entered into between those parties.
Present petitioner is stranger to that
contract.

As to the second and more vital
aspect
pertaining
to
No-objection
Certificate, once the finding has been
recorded by the respondent no. 2 in favour
of respondent no. 3, the only recourse that
may remain open to the petitioner to
question the No-objection Certificate, may
be available under suit proceeding, and,
not in the writ jurisdiction, which has to
remain confined to summary procedure.

In such view of the matter, there
is no good ground to interfere in the matter
in writ jurisdiction under Article 226 of the
Constitution of India.

The writ petition lacks merit and is,
accordingly, dismissed. No order as to costs."

(Emphasis supplied)

12.

While
dismissing
the
aforementioned writ petition, the Division
12 All. M/S Pandit Damber Lal Bhagirathi Filling Station District Bulandshahr Vs. U.O.I. & Ors. 645
Bench has clearly opined that once, finding
has been recorded by the IOCL in favour of
the allottee, the only recourse was available
to the complainant to question the NOC
under the suit proceeding and the court had
declined to entertain the writ petition at the
behest of complainant.

13. Aggrieved by the show-cause
notice, the petitioner herein had filed a
Civil Misc. Writ Petition No. 6708 of 2022
on 09.03.2022. Before the writ petition
could be
heard
on 12.03.2022,
the
respondent no. 3 terminated the dealership
of the petitioner. This termination order has
been assailed by the petitioner by means of
the instant writ petition.

14. Learned counsel for the petitioner
submitted that the IOCL had given nod for
fresh agreement with the petitioner only
after complete appraisal of the entire facts
such as original allottee's resignation,
acceptance by the management (employer),
later on rejection by the DIOS and
subsequent
joining.
Therefore,
such
situation would not place the conduct of
original allottee to have committed fraud
by any stretch of imagination.

15. He further submitted that, there
was no Clause 45(j) in the original
agreement signed by the petitioner's
father/original allottee and IOCL. This
Clause was only incorporated on the new
agreement which was entered by the
petitioner at the time of reconstitution of
the firm and the IOCL on 11.01.2018.

16. That, Clause 45 (j) is being
incorporated herein for ready reference :-

"Clause 45 (J)- " If the Dealer
has concealed any information which if
disclosed would in the opinion of the
General Manager of the Corporation for
the time being a E-8, Sector 1, Noida
whose decision shall be final, have
disentitled him to be appointed as a
Dealer:"

17. Learned counsel for the petitioner
submitted that, therefore, at this stage when
the new entity (petitioner's firm) came into
existence, the IOCL cannot raise an
objection pertaining to the original allottee
that he had made any concealment for
getting NOC. At the time of issuance of
LOI, the resignation of the original allottee
was accepted by management (employer),
even though later on resignation was turned
down by the DIOS and the original allottee
rejoined the institution. In fact, IOCL had
written a letter to the college seeking the
job status and they were aware of all the
facts. Since 13.02.2009, the IOCL was
throughout aware of the job status of the
original allottee and IOCL is bound by
acquiescence now.

18. Learned counsel for the petitioner
further submitted that the termination of
dealership order was passed on the premise
that "fraud vitiates everything". This would
not be applicable in the present case as the
status of petitioner's father was disclosed
by way of various communications made
by the allottee to the IOCL and hence, no
fraud can be said to have taken place.

19. Per contra, Mr. Anand Tiwari
appearing for respondent nos. 2 and 3
had submitted that in the LOI on
22.08.2005, it was mentioned that under
Clause 8 of the LOI, which lays down
that "if already employed you will have
to submit acceptance of resignation
letter from your employer prior to the
issuance of the appointment letter by
us."
646 INDIAN LAW REPORTS ALLAHABAD SERIES

20. He further submitted that clause
47(ii) and 58(a) clearly states that the
dealers shall not take up any other
employment or be engaged in any other
business apart from doing dealership and in
case, there is any breach, IOCL shall be at
liberty
to
terminate
the
agreement
forthwith.

21. Clause 47(ii) of the agreement is
being quoted herein for ready reference:-

"47. Except with the previous
written consent of the Corporation :

(ii) The Dealer himself (if he be
an individual) or partners/members or any
of them of the Dealer (if the Dealer is a
firm/co-operative society) shall not take up
any other employment or engaged in any
other business apart from the running of
the retail outlet which is the subject matter
of this agreement."

22. He further submitted that on the
last complaint made by the complainant,
and further in response to the order passed
by this Court, IOCL had conducted an
inquiry and on the recommendation of the
Inquiry Officer, a show cause notice was
issued which resulted in termination of the
dealership. The learned counsel for IOCL
relied upon the judgement passed by this
Hon'ble Supreme Court in the matters of
Tata Cellular v. Union of India1 and
also a judgment passed this Hon'ble Court
in State of U.P. v. Prem Shanker
Sharma2 and the judgment passed in the
matter of High Court of Judicature at
Bombay v. Udai Singh3 stating that the
Court has no power to make a judicial
review on the decision taken by the
company as the Court does not have the
expertise to correct the administrative
decision.

23. Once it is established that the
petitioner had played fraud then any
proceeding arising out of such order cannot
be held to be legal or in consonance with
law. The order obtained by fraud has to be
treated as nullity and accordingly, the
dealership has rightly been terminated as
the same has been availed because of the
fraud played by the petitioner. Learned
counsel for the respondent placed reliance
on the judgement passed by the Hon'ble
Supreme Court in the matter of A.V.
Papayya Sastry and Others v. Govt. of
A.P. and Others4.

24. The complainant had also filed an
impleadment
application.
Mr.
Neeraj
Tripathi, learned Senior Advocate appeared
and argued that the allottee has played a
fraud and accordingly, the dealership of the
petitioner should be cancelled.

25. We have carefully considered the
submissions advanced by the learned
counsel for the respective parties. With
their able assistance, we have perused the
pleadings, grounds taken in the petition,
annexures thereto and reply filed by the
concerned respondents.

26. It is apparent that in this case, the
impugned order has been passed on the
ground that the petitioner has committed a
fraud by not disclosing that he was in
service
while
he
was
running
the
dealership. The first issue in this case is
whether the petitioner has committed a
fraud and the second issue is whether the
respondents are bound by doctrine of
acquiescence.

FIRST ISSUE

27. The Hon'ble Supreme Court in
the matter of Chandro Devi & Etc. vs
12 All. M/S Pandit Damber Lal Bhagirathi Filling Station District Bulandshahr Vs. U.O.I. & Ors. 647
Union Of India5, has held that every
wrong action is not a fraudulent action.

28. Learned counsel for the petitioner
placed reliance upon the judgement and
order passed by the Hon'ble Supreme
Court in Sukh Sagar Medical College and
Hospital v. State of M.P.6, wherein it is
held that as far as the fraud is concerned,
the
fraud
can
either
be
actual
or
constructive fraud. The actual fraud is a
concealment or false representation through
an intention or reckless statement, whereas,
the constructive fraud is an unintentional
deception or misrepresentation that causes
injury to another. There can also be an
actionable fraud. It is a deception practice
in order to induce another to part with
property or surrender some legal rights.

29. In this case, it cannot be said that
the petitioner had obtained the dealership
by fraud. Since nothing has been concealed
by the petitioner. All the facts were brought
to the notice of IOCL and it was well aware
of the fact. It cannot be said that the
petitioner had got the dealership by fraud.

30. It is evident that the petrol-pump
was allotted to the father of the
petitioner/original allottee on 22.08.2005,
at that point of time, the relevant clause
in the LoI stated that if an allottee is
already employed, he has to submit
acceptance of resignation letter from his
employer prior to the issuance of LoI by
the Company. In this case, the petitioner,
who was working as a Lecturer in a
private unaided college, had submitted
his resignation on 01.10.2005, which was
accepted
by
the
management
on
10.10.2005
and
was
forwarded
for
approval to DIOS. After issuance of this
letter, the DIOS, Bulandshahar rejected
the voluntary retirement sought by the
allottee. This fact was brought to the
notice of IOCL but IOCL chose not to
take any action on the same. The
petitioner had duly informed about the
status of the service i.e. his resignation,
relieving from the college, order of DIOS
rejecting the resignation, rejoining of the
petitioner's father and retirement in the
month of June, 2009. Everything was in
the knowledge of the IOCL. Hence, it
cannot be said that there was any
concealment on the part of the petitioner
and the petitioner cannot be said to have
committed a fraud upon IOCL in getting
dealership by concealing the relevant
facts. In fact, all the facts were brought to
the notice of IOCL as and when the said
development took place.

31. The respondent nos.2 & 3 in
their counter affidavit have agreed that
the complainant had made complaints on
28.08.2014,
29.09.2014,
11.09.2014,
09.05.2015 and 10.07.2016. The allottee
and the complainant entered into a
compromise
and
the
complainant
withdrew his complaint and accordingly,
IOCL dropped the proceedings.

32. The complainant thereafter
appears to have turned greedy and again
made a fresh complaint on the same issues,
which he had complained earlier. The
IOCL was well aware of the facts and did
not take any action on the complaint, for
which the complainant had filed the writ
petition for cancellation of dealership.

33. The last complaint filed by the
complainant was on two grounds; firstly,
the land did not belong to the petitioner and
secondly, on the issue of the allottee
holding Office of Profit, as the allottee was
a teacher in a private school when the
allotment was made.
648 INDIAN LAW REPORTS ALLAHABAD SERIES

34. The issue raised in the complaints
which was dropped once, cannot be raked
up again and again. IOCL was well aware
of the status of the service of the allottee
both by his communications to IOCL and
also by the complaint filed by the
complainant. On the various complaints,
notices were issued to the allottee for which
he had answered. Once being satisfied with
the answer, it is not open for the IOCL to
revisit or to set up an inquiry or to issue a
show-cause notice on the issues which had
already been decided earlier. Therefore, the
objection of the learned counsel for the
IOCL, that the Court has no power to make
a judicial review on the decision taken by
the company as the Court does not have
expertise to correct the administrative
decision, is totally misconceived as in the
matter, moreover, in the pleading, there is
no
ambiguity
which
requires
great
expertise, once the issue was barred by
acquiescence. In the impugned termination
order, major emphasis have been given on
Clause 45(j) of the agreement. This Clause
was a part of the agreement dated
11.01.2018, which was executed afresh
while reconstitution of the firm. There is
not an iota of evidence to show that the
present petitioner had concealed any kind
of information while entering into the
agreement dated 11.01.2018. IOCL was
well aware about the service status of the
original allottee.

35. At the time of original allotment,
there was no Clause 45(j) but it was Clause
8 in the LoI dated 22.08.2005 which reads
as follows :-

"under Clause 8 of the Letter of
Intent that "if already employed you will
have to submit acceptance of resignation
letter from your employer prior to the
issuance of the appointment letter by us."

36. As per Clause 8 of the LoI, the
original
allottee
had
submitted
his
resignation/voluntary retirement which was
also accepted on 10.10.2005, the DIOS
vide order dated 29.03.2006 has rejected
the resignation and the original allottee
continued with the service till June, 2009
till
he
had
attained
the
age
of
superannuation. This fact was brought to
the notice of IOCL about his resignation,
acceptance, rejection by the DIOS and his
retirement. Hence, it cannot be said that the
allotment was made by concealing the facts
and because of fraud. There is no element
of fraud in this case. The Clause 45(j) was
a part of the agreement which was entered
between the parties at the time of
reconstitution of the firm. The alleged
violation did not take place when the fresh
agreement was executed. Hence, there was
no violation of Clause 45(j) of the
agreement.

37. As far as the fraud is concerned,
there is hardly anything to suggest that a
fraud has been played on the respondents.

SECOND ISSUE

38. The status of the service of the
father of the petitioner was well known to
the IOCL right from the beginning and they
did not take any action against it. Hence, it
is a clear case of acquiescence. IOCL
cannot, after nine years of slumber, get up
and take action against the petitioner. When
acquiescence takes place, it presupposes
knowledge against the particular act. From
the knowledge comes passive acceptance,
therefore, instead of taking any action
against any illegality as per the terms of the
contract despite adequate knowledge of his
term
and
allowing
it
to
continue
consciously ignoring it, then definitely it is
bound by doctrine of acquiescence.
12 All. M/S Pandit Damber Lal Bhagirathi Filling Station District Bulandshahr Vs. U.O.I. & Ors. 649

39. Hon'ble Supreme Court in the
matter of Union of India v. N. Murugesan
and Ors7 has held that acquiescence would
mean a tacit or passive acceptance. It is
implied and reluctant consent of an act. In
other words, such an act would qualify a
passive
acceptance.
Thus,
when
acquiescence takes place, it presupposes
knowledge against the particular act. From
the knowledge comes passive acceptance,
therefore, instead of taking any action
against any alleged refusal to perform the
original
contract,
despite
adequate
knowledge of its term and instead being
allowed
to
continue
by
consciously
ignoring and thereafter proceeding further,
acquiescence does take place. As a
consequence, it reintroduces a new implied
agreement between the parties. Once such a
situation arises, it is not open to the party
that acquiesced itself to insist upon the
compliance of the original terms. Relevant
part of the judgement is reproduced herein
below:-

"24. We have already discussed
the relationship between acquiescence on
the one hand and delay and laches on the
other. Acquiescence would mean a tacit or
passive acceptance. It is implied and reluctant
consent to an act. In other words, such an
action would qualify a passive assent. Thus,
when
acquiescence
takes
place,
it
presupposes knowledge against a particular
act. From the knowledge comes passive
acceptance, therefore instead of taking any
action against any alleged refusal to perform
the original contract, despite adequate
knowledge of its terms, and instead being
allowed to continue by consciously ignoring
it
and
thereafter
proceeding
further,
acquiescence does take place.

25.
As
a
consequence,
it
reintroduces a new implied agreement
between the parties. Once such a situation
arises, it is not open to the party that
acquiesced itself to insist upon the
compliance of the original terms. Hence,
what is essential, is the conduct of the
parties. We only dealt with the distinction
involving a mere acquiescence. When
acquiescence is followed by delay, it may
become laches. Here again, we are inclined
to hold that the concept of acquiescence is
to be seen on a case-to-case basis."

40. In Bichitrananda Behera v.
State of Orissa and other8 Hon'ble
Supreme Court while relying upon UOI v.
N. Murugesan (supra) held that the ground
of
delay
and
latches
amounts
to
acquiescence which means an implied and
reluctant consent to an act. In this case,
Hon'ble
Supreme
Court
made
the
observations while declining the belated
service related claim made by the petitioner
pertaining to the post of physical education
trainer on the ground that in the period of
over 12 years, he had not moved before any
forum, be it a court of law or a tribunal or
an authority asserting his claims qua the
solitary post of PET in the school in
question.

41. In view of the law laid down by
the
Hon'ble
Supreme
Court
in
N.
Murugesan
(supra)
and
Bichitrananda
Behera (supra), the law is clear that IOCL
cannot now take action against the
petitioner by terminating the agreement.

42. The record clearly transpires that
the Division Bench while entertaining the
writ petition bearing Writ-C No. 34430 of
2021 has dismissed the writ petition vide
order dated 02.03.2022 with an observation
that the Court had considered both the
objections of the complainant, wherein, it
was also alleged that the original allottee
650 INDIAN LAW REPORTS ALLAHABAD SERIES
was wholly ineligible as he was deriving
payment of salary from an educational
institution where he was posted as Lecturer
and the second objection pertaining to the
NOC which was obtained by the original
allottee
on
the
basis
of
some
fraud/concealment of fact. The same was
also negated on the ground that the IOCL
has already accorded NOC in favour of the
original
allottee,
therefore,
the
only
recourse was available to question the NOC
under the suit proceedings. The Division
Bench has considered both the aspects and
grounds taken by the complainant and nonsuited the same on the ground that the
complainant had to press the relief in the
suit proceeding, moreover, the said order
was passed in presence of the counsel of
the IOCL, therefore, it was not open to the
respondent- IOCL to proceed to cancel the
dealership of the petitioner.

43. The conduct of the complainant
was dubious. He had made a complaint,
settled the dispute with the brother, taken
Rs. 17/- lakhs and withdrew the complaint.
Thereafter, it seems that he has turned
greedy and has again started making
complaints in order to extract some more
money.

44. Since there is no element of fraud
by the petitioner and also IOCL is bound
by doctrine of acquiescence, hence, the
impugned order dated 12.03.2022 passed
by respondent no. 2 terminating the
dealership of the petitioner is liable to be
set aside and accordingly, the termination
of dealership is set aside.

45. The writ petition is allowed. No
order as to costs.
----------
(2023) 12 ILRA 650
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.12.2023

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.
THE HON'BLE MANISH KUMAR, J.

Writ-C No. 9686 of 2007

Anuj Kudesia ...Petitioner
Versus
L.I.C. & Ors. ...Respondents

Counsel for the Petitioner:
Anil
Kumar
Tiwari,
Apoorva
Tewari,
Prashant Puri

Counsel for the Respondents:
P.K. Khare, Mahendra Pratap Singh, Mohd.
Altaf Mansoor

Insurance claim-The petitioner -advocate-
suffered from accident-result in amputation of
his right arm - claims for the insured amount
and disability benefits have been rejectedcannot
perform
his
profession
-can
be
concluded that his earning capacity has taken a
sufficient hit after his accident-petitioner is held
entitled to disability benefits.

W.P. allowed. (E-9)

List of Cases cited:

1. Abhimanyu Pratap Singh Vs Namita Sekhon &
anr.; (2022) 8 SCC 489

2. Udai Shankar Singh Vs Branch Manager, LIC ;
1998 (2) AWC 1419

3. Prabir Kumar Nath Vs LIC & ors.; AIR 2003
CAl 318

4. LDA Vs M.K. Gupta, (1994) 1 SCC 243

5. Sangrur Sales Corp. Vs United India
Insurance Co. Ltd., (2020) 16 SCC 292

6. Peacock Plywood (P) Ltd. Vs Oriental
Insurance Co. Ltd., (2006) 12 SCC 673