IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No. 3299 of 2019 Decided on 09th July 2025 M/s Sai Filling and Service Station …Petitioner Versus M/s Hindustan Petroleum Corporation Limited and another …Respondents Coram Hon’ble Mr. Justice Ajay Mohan Goel, Judge 1Whether approved for reporting? Yes For the petitioner: Mr. Neeraj Gupta, Senior Advocate, with Mr. Ajeet Pal Singh Jaswal, Advocate. For the respondents: Mr. Nitin Thakur, Advocate. Ajay Mohan Goel, Judge (Oral) By way of this writ petition, the petitioner has, inter alia, prayed for the following reliefs:- “(a) Directing the respondents to reconstitute the retail outlet exclusively in the name of surviving partner Shri Surinder Kumar Sharma on the basis of Will dated 07.03.2003 executed by Shri Des Raj Sharma in his favour bequeathing his 51 shares in the business in favour of Shri Surinder Kumar without insisting for obtaining probate of the said Will. (b) Directing respondents not to hamper, stop, cause obstruction in carrying out business operations of the retail outlet being run by the petitioner entity through Shri Surinder Kumar Sharma regularly.” 2. Particulars of the petitioner, as they stand spelled out in the memo of parties are as under:- 2 “M/s Sai Filling and Service Station, HPC, Petrol Pump, Village Chail-Chowk, Tehsil Chachiot District Mandi, (HP)-175 045 through its Partner Shri Surinder Kumar son of Shri Gian Chand, resident of Village and P.O. Chail-Chowk, Tehsil Chachiot, District Mandi, (HP).” 3. The case of the petitioner is that one Sh. Desh Raj Sharma responded to an advertisement issued by the Hindustan Petroleum Corporation for setting up of a retail outlet dealership of the respondent-Corporation at Chail- Chowk, in District Mandi. Letter of Intent was issued in his favour on 28.06.1999. Thereafter, vide Annexure P-2, Sh. Desh Raj Sharma, who was carrying business in the name and style of M/s Sai Filling and Service Station HPC Petrol Pump, Chail Chowk, District Mandi, was informed of his appointment as a dealer of the respondent-Corporation which was effective from 20.01.2000 on the terms and conditions mentioned in the agreement entered into between the Corporation and Sh. Desh Raj Sharma on 20.01.2000. 4. As per the petitioner, thereafter, Sh. Desh Raj Sharma, vide Annexure P-3, wrote to the respondent- Corporation on the subject of induction of a Financial Partner intimating them that he intended to induct Sh. Surinder Kumar 3 Sharma as his partner in light of huge monetary implications spelled out in the said communication. Similarly vide Annexure P-4, Sh. Surinder Kumar Sharma, also made a request to the respondent-Corporation for induction. 5. A partnership deed was entered into between Sh. Desh Raj Sharma and Sh. Surinder Kumar Sharma vide Annexure P-5 and this was followed by a memorandum of agreement which was entered into on 04.03.2005 between Sh. Desh Raj Sharma and Sh. Surinder Kumar Sharma on one hand and the respondent- Corporation on the other hand with regard to the functioning of the retail outlet. 6. As per the averments made in the writ petition, Sh. Desh Raj Sharma, died on 23.12.2016. His death certificate is appended with the petition as Annexure P-7. Thereafter, according to the petitioner, Surinder Kumar wrote to the respondent-Corporation vide Annexure P-8 dated 13.11.2018 that he had come to know that Sh. Desh Raj Sharma had passed away some time back and though, he was aware about the sickness of Sh. Desh Raj but, the news of his demise came 4 as a shock. Accordingly, a request was made by him for grant of a period of 60 days to submit the documents for reconstitution without stopping the sale and supply to the filling station. 7. Thereafter, vide Annexure P-9, Deputy General Manager of the respondent-Corporation at Shimla wrote to the petitioner on 29.11.2018 that after the demise of Sh. Desh Raj, the retail outlet dealership agreement signed by Sh. Desh Raj automatically stood rendered null and void and as a result thereof supplies of MS/HSD were automatically stopped. Yet, the Corporation, in terms of said communication informed the petitioner that they had agreed to reopen the supply on the basis of advance payment for all products effective immediately, in the backdrop of the holding out of the petitioner that it was having certain outstanding commitment in the market, which would become unrecoverable. It was, however, mentioned in the said communication that the reopening of supplies does not constitute the recognition of the Corporation of continuation of the dealership on a permanent basis. 8. To cut the controversy short, thereafter, communications continued between the petitioner and the 5 respondent-Corporation and ultimately, the petitioner approached the respondent-Corporation to reconstitute the dealership as per the application enclosed alongwith Annexure P-12, i.e. on the basis of the Will of Sh. Desh Raj, in terms whereof, the petrol pump was willed in the name of Sh. Surinder Kumar. 9. In response thereto, vide Annexure P-14, dated 13.03.2019, respondent-Corporation wrote to the petitioner and stated that the Will of the deceased submitted by the petitioner alongwith the personal proposal of the petitioner had not been probated by the Competent Court as required under the policy and the petitioner was asked to submit the Will duly probated by the Competent Court for further processing of its proposal. This was again reiterated by the Corporation vide letter dated 03.05.2019 and feeling aggrieved, the petitioner has approached the Court. 10. Learned Senior Counsel for the petitioner vehemently argued that in terms of the memorandum of understanding entered into between deceased Desh Raj and the partner of the petitioner firm namely Surinder Kumar on one 6 hand and the respondent-Corporation on the other hand, Annexure P-6, dated 04.03.2005, it was specifically provided therein, i.e. in Clause 61 thereof that the dealer, in the case of being a partnership firm, was to include survivors or survivor or such partners or heirs, executors and administrators of the last surviving partner and in lieu of this, as the deceased partner had already Willed the petrol pump in favour of Surinder Kumar Sharma, there was no occasion for the respondent-Corporation to ask for probate thereof from the petitioner. Learned Senior Counsel also referred to Annexure P-17 and submitted that in terms of the amendments carried out in the guidelines vide Annexure P-17 also, which was dated 03.07.2018, the act of the respondent-Corporation of calling upon the petitioner to submit a probate was unsustainable in the eyes of law. Accordingly, he prayed that the petition be allowed, as prayed for. 11. On the other hand, learned counsel for the respondent-Corporation argued that the writ petition was not maintainable in the light of the controversy involved in this petition, as the same was pure and simple commercial 7 transaction and the petitioner had no right to invoke the jurisdiction of this Court under Article 226 of the Constitution of India. Learned counsel further argued that the retail outlet in issue was advertised in the year 1999 under “Outstanding Sports Person Category” and Sh. Desh Raj Sharma was allotted the petrol pump under this particular category. He further argued that the retail outlet dealership agreement signed by him alongwith Surinder Kumar became inoperative after the death of Sh. Desh Raj Sharma and since the dealership is a “license” as per Clause-2 of the dealership agreement and as any changes in the constitution of the dealership can only be done as per the applicable and binding reconstitution guidelines of the Corporation, in terms of the prevailing reconstitution policy, the Will submitted by the surviving partner could only be considered after probate thereof was carried out by any Competent Court. He further submitted that the legal heirs of deceased Sh. Desh Raj Sharma were not impleaded as party respondents in the petition, who were necessary parties and no certificate of theirs, that they did not have any objection with regard to the request being made by the petitioner was 8 appended with the petition. Learned counsel further submitted that this writ petition otherwise was not maintainable as the same was filed through a partnership firm consisting of two partners, of which, one partner was already dead which automatically ended the partnership firm per se otherwise. Learned counsel also submitted that the petition was not maintainable for another reason also that it was nowhere spelled out in the writ petition that the partnership firm was a registered one. 12. Having heard learned counsel for the parties and having carefully gone through the record of the case, this Court is of the considered view that no relief as is being prayed for by the petitioner can be granted to it. 13. First of all, the retail outlet was allotted by the respondent-Corporation to Sh. Desh Raj Sharma and that too in his capacity as an outstanding sportsman, because, the dealership in issue was advertised under that quota in terms of the stand of the respondents. The memorandum of understanding that was entered into between Sh. Desh Raj and Sh. Surinder Kumar on one hand and the 9 respondent-Corporation on the other hand, obviously, came to an end in its present form upon the demise of Sh. Desh Raj. What is really surprising is the fact that, whereas, Sh. Desh Raj died on 23.12.2016, it was after two years, i.e. on 13.11.2018 that Sh. Surinder Kumar wrote to the respondent-Corporation informing that he had recently come to know that Sh. Desh Raj was dead. This is difficult to belief. It is obvious that as the factum of the death of Sh. Desh Raj was not in the knowledge of the Corporation, the petitioner through Sh. Surinder Kumar continued to carry the business, but, after this fact came to the notice of the Corporation, then, it started corresponding with the Corporation to accommodate it/him. One more interesting fact, which this Court wants to highlight is that in the first communication dated 13.11.2018, Annexure P-8, when time was sought by Sh. Surinder Kumar Sharma on behalf of the petitioner for the submission of documents for reconstitution of the firm, it was nowhere revealed therein that there was a Will made in his favour by the deceased Sh. Desh Raj. Secondly, it surprises this Court that Sh. Desh Raj on one hand made a “Will”, in terms whereof, the petrol pump was bequeathed in 10 favour of Sh. Surinder Kumar and then the “Will” was handed over by Sh. Desh Raj to Surinder Kumar. Why the legal heirs of Sh. Desh Raj were excluded as far as their right upon the petrol pump is concerned is not being dwelled upon by this Court for the reason that it is not within the domain of this Court to go into all these issues and these issues could have been addressed and redressed by the appropriate Fora. It is also very very surprising that none of the legal heirs of the deceased Desh Raj Sharma have been impleaded as respondents or proforma respondents by the petitioner, nor any no objection certificate has been appended on their behalf to the effect that they have no objection, in case, the dealership is entered into the name of the petitioner on the basis of the Will of Sh. Desh Raj. In fact whether or not the Will being propounded by the petitioner is a valid Will is not for this Court to answer. Though, this Court is not doubting the validity of the Will, but what the petitioner wants is that this Court should fix its stamp of approval by issuing a mandamus as is being prayed for. This cannot be done. If Surinder Kumar is laying its stake on the basis of a Will purportedly propounded by Sh. Desh Raj, in favour of Sh. 11 Surinder Kumar, then, he has to seek a probate thereof as is being demanded by the Company, because that shall remove the clouds of suspicion over the veracity of the Will and in the course of the probate of the Will, the legal heirs of the deceased Sh. Desh Raj Sharma can also come forth and put forward their stand in the matter. 14. Accordingly, in the light of above discussion, as this Court does not finds any merit in the petition, the same is dismissed. Pending miscellaneous applications, if any, also stand disposed of. (Ajay Mohan Goel) Judge July 09, 2025 (Vinod)