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KISHORE AUTO SALES VERSUS BHARAT PETROLEUM CORPORATION LTD.

    Civil Misc. Writ Petition No. 16930 of 2009

    Decided On, 14 May 2010

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MR. JUSTICE ASHOK BHUSHAN & THE HONOURABLE MR. JUSTICE VIRENDRA SINGH

    For the Appearing Parties: Ravi Kant, Imran Syed, V.B. Upadhya, R.G. Padia, Prakash Padia, Advocates.



Judgment Text

Ashok Bhushan, J.

(1) Heard Sri Ravi Kant, learned Senior Advocate, assisted by Sri Imran Sayeed for the petitioners and Sri V.B. Upadhyay, learned Senior Advocate, assisted by Sri Prakash Padia for the respondents.

(2) This writ petition has been filed by the petitioner, a retail outlet dealer of Bharat Petroleum Corporation Ltd. challenging the order dated 14.3.2009 by which dealership of retail outlet has been terminated by the Bharat Petroleum Corporation.

(3) Brief facts necessary for deciding the writ petition are; the petitioner was appointed as retail outlet dealer on 2.5.1977. The dealership between the petitioner and the respondent Corporation is being governed by the contract in writing. Last such a contract was entered into between the petitioner and the respondent Corporation on 4.4.2003. An inspection of the petitioner's retail outlet which is situated at Hanumanganj, district Allahabad was conducted by M/s SGS India Private Ltd. authorised by the Bharat Petroleum Corporation for such purpose on 3.12.2008. During inspection sample of motor spirit and high speed diesel oil was taken by the inspection team. A test known as marker test was conducted at the outlet of the petitioner in which sample of motor spirit failed, the traces of marker were found in the petrol confirming adulteration, sample from the nozzle of dispensing pump including T.T. sample were taken. The samples collected were tested in the laboratory of the corporation at Mughalsarai in the presence of the petitioner and the transporter. Sample of motor spirit was found adulterated. The supply of petroleum products was suspended on 3.12.2008 itself. A show-cause notice dated 9.1.2009 was issued to the petitioner to show-cause as to why the dealership be not terminated. The petitioner submitted a reply to the show-cause notice vide his letter dated 19.1.2009. The petitioner filed a writ petition in this Court being writ petition No. 3568 of 2009. A Division Bench of this Court vide order dated 28.1.2009 stayed the effect and operation of the order dated 3.12.2008, passed by the Bharat Petroleum Corporation and respondents were directed to resume supply of the petitioner forthwith. Against the order dated 28.1.2009, passed by the Division Bench S.L.R(C) No. 4543 of 2009 was filed in which S.L.P. leave was granted and the order of the High Court dated 28.1.2009 was set aside and High Court was directed to reconsider the matter afresh after hearing the parties. On 14.3.2009, the Corporation terminated the petitioner's dealership hence, writ petition No. 3568 of 2009 was withdrawn with liberty to challenge the order terminating the dealership.

(4) The present writ petition has been filed by the petitioner challenging the order dated 14.3.2009, terminating the petitioner's dealership. Acounter affidavit has been filed by the Corporation to which rejoinder affidavit has also been filed.

(5) Sri Ravikant, learned Senior Advocate, appearing for the petitioner challenging the impugned order submitted that the entire exercise of inspection, taking of sample and the report of laboratory have been done in flagrant breach of the Government orders and the Marketing Discipline Guidelines, 2005. It is contended that inspection, seizure and sampling of the petrol and diesel have to be carried out in accordance with the procedure prescribed in the Marketing Discipline Guidelines, 2005. It is submitted that under the Essential Commodities Act, 1955, the Central Government has issued a Control Order namely; Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution, and Prevention of Malpractices) Order, 2005. Clause 7 of which order provides that power of search and seizure can be exercised only by Gazetted Officers of the Central Government or State Government or any police officer not below the rank of Deputy Superintendent of Police or any officer of the oil company not below the rank of Sales Officer. It is submitted that inspection having not been conducted in accordance with clause 7 of the Control Order,2005, the entire exercise is vitiated and deserves to be set aside. It is further submitted that method of test and sample of motor spirit and high speed diesel are to be adopted as contemplated in Marketing Discipline Guidelines,2005 copy of which has been filed as Annexure- 4 to the writ petition, which provide that test has to be conducted according to BIS specification i.e. I.S. 1448. The inspection in question having not been conducted in accordance with the above Control Order, 2005 the termination of dealership is invalid. It has been further submitted that the marker test which was conducted on 3.12.2008 and has been relied for termination of dealership has not been found to be foolproof test and Committee of Directors appointed by Government of India in December, 2008 itself found inefficiency of marker test system. Learned counsel for the petitioner has placed reliance on the judgement of Karnataka High Court dated 13.1.2010 in writ petition No. 37175 of 1999, Sri G. V. Bhushan and others v. Union of India and others, in which judgement the Marketing Guidelines of 2005 has been set aside including the consequent actions thereunder.

(6) Sri V.B. Upadhyay, learned Senior Advocate, refuting the submissions of learned counsel for the petitioners contended that the petitioner's outlet was inspected in the presence of petitioner's representative, who has also signed the inspection report in which report, the petitioner's sample of motor spirit failed in the marker test. It is submitted that the sample collected from retail outlet was also tested at Mughalsarai Laboratory of the Corporation in the presence of the petitioner on 5.12.2008 which test also confirmed that motor spirit (petrol) was adulterated. It is submitted that adulteration having been proved in the petrol, the Corporation was within its right to cancel the dealership of the petitioners and the order impugned was passed after giving notice to the petitioners, which does not suffer from any infirmity. It is submitted that M/s SGS India Private Ltd. was authorised to inspect the retail outlet on behalf of the company and the said system continued till 31.12.2008. Hence, there is no error in the test conducted by the inspection team. It is submitted that marker test is a valid test which was relied by the Corporation at the relevant time and mere fact that subsequently, the matter was being reviewed for finding out another methodology of conducting inspection has no bearing in the present case. It is submitted that against the judgement of the Karnataka High relied by the petitioner in Sri Sri G. V. Bhushan and others v. Union of India and others (supra), a special appeal has been filed in which special appeal, the judgment of the Karnataka High Court has been stayed. Reliance has been placed on the Division Bench judgment of this Court in Vindhya Services Station, Mirzapurand another v. Union of India and others, 2008(10) ADJ 663 (DB) and judgment learned Single Judge in writ petition No. 22959 of2009, M/s Satyam Filling Station v. Appellate Authority and another, 2010(2) ADJ 546.

(7) We have considered the submissions of learned counsel for the parties and have perused the record.

(8) The submissions raised by the learned counsel for the petitioners can be summarised as follows:

(i) The search and seizure of the retail outlet has to be made in accordance with Clause 7 of the Motor Spirit and High Speed Diesel (Regulation of Supply, distribution, and Prevention of Malpractices) Order, 2005. According to clause 7 of the aforesaid order only a Sales Officer of a company is authorised to conduct the search and inspection. Search and inspection having not been made in accordance with Clause 7 of the 2005 Order, the consequential action falls on the ground. (ii) The Marketing Discipline Guidelines, 2005 provides for method and manner of testing the sample. The test has to conform to the specification No. 2796 and IS 1448 and no such test having been conducted, the impugned order terminating the agency is violative of Marketing and Discipline Guidelines, 2005. The samples having been taken by an agent appointed by the Oil Company and not by officers of the Corporation, the whole process is vitiated. (iii) The marker test which was applied for inspection on 3.12.2008 lacks credence and is not foolproof test.

(9) Before we proceed to examine the respective submissions of learned counsel for the parties, it is relevant to note certain important terms and conditions of the agreement entered into between the petitioner and the Oil Company on 4.4.1993, copy of which agreement has been filed as Annexure-1 to the writ petition. By the foresaid agreement licence was granted to the petitioner for carrying on business at Hanumanganj, Allahabad in accordance with the terms and conditions of the agreement. Paragraph 10 of the agreement provides that the licensees hereby covenant and agree with the Company as follows: (a)...................................... (b)...................................... (c)....................................... (d)...................................... (e)...................................... (f) ....................................... (9)...................................... (h)...................................... 0) ...................................... Q)...................................... (k)...................................... (I) ..................................... (m)...................................... (n)...................................... (o) At all times and from time to time during the currency of this licence to give adequate facilities to the Company, its officers, agents and servants to inspect and test the accuracy and general working of the pumps and other equipment upon the said premises and to investigate the conduct and management by the Licensees of the said facilities, and afford to the Company its officers, agents and servants all proper and necessary assistance and facilities for conducting such inspection and investigating and for maintenance of the outfit.'

(10) Clause 13(a) provides that notwithstanding anything to the contrary herein contained the Company shall be at liberty to terminate the agreement upon or at any time on the happening of any of the events as enumerated in the said clause. Clause 13(a) (vii) and (viii). It is relevant for the present case are quoted herein below:

"13(a) (vii) If the Licensees shall be guilty of a breach of any of the covenants and stipulations on their part contained in this agreement; (viii) If the Licensees shall commit or suffer to be committed any act which in the opinion of the Marketing Manager of the Company for the time being in Bombay or any other person nominated for this purpose by the Company is prejudicial to the interest or good name of the Company or its products. The decision of such officer or person shall be final and binding on the Licensees."

(11) The Oil Company has framed Marketing Discipline Guidelines 2005. The State of U.P. has also issued a Government order dated 5.8.2008, providing for details with regard to inspection of the petrol and diesel pumps. Paragraph 12 of the Government order which is relevant provides that the Central Government by the Moto.Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) Order, 2007 has mixed marker in the motandr spirit and high speed diesel for the purpose of checking the adulteration in the aforesaid petroleum products. Clause 12 further provides that if in the marker test pink result is received, it is sufficient proof of adulteration and in the event of failing of marker test, no further chemical analysis is required.

(12) In exercise of power under Essential Commodities Act, 1955 Central Government has made Order 2005 clause 7 of the order on which much reliance have been placed by the learned counsel for the petitioner is quoted as below:

"7. Power of search and seizure.-(1) Any Gazetted Officer of the Central Government or a State Government or any police officer not below the rank of Deputy Superintendent of Police duly authorised by general or special order of the Central Government or a State Government, as the case may be, or any officer of the oil company, not below the rank of sales officer, may, with a view to securing compliance with the provisions of this order, or for the purpose of satisfying himself that this order of any order made thereunder has been complied with or there is reason to believe that all or any of the provisions of this order have been and are being or are about to be contravened."

(13) The principal submission of learned counsel for the petitioners is that under clause 7 only an officer of the Oil Company not below the rank of Sales officer is authorised to conduct search and the search which was conducted on 3.12.2008, no officer of the company was present hence, the search is in violation of clause 7 of the 2005 Order and the consequential action deserves to be set aside on this ground alone.

(14) As noticed above, clause 10 (o) of the agreement between the petitioner and the Corporation obliges an outlet dealer to give adequate facilities to the Company, its officers, agents and servants to inspect and test the accuracy and general working of the pumps. Under clause 10 (o) the Company its officers, agents and servants are authorised to investigate and conduct inspection and investigation. It is thus, clear that under the agreement between the parties, agents of the company are also authorised to inspect to find out as to whether the terms and conditions of the agreement is being followed by the outlet dealer or not. Whereas under clause 7 of the 2005 Order, search can be conducted only by an officer not below the rank of the Sales Officer in the oil company apart from the gazetted officer of the Central Government and at least officer not below the rank of Deputy Superintendent of Police. The search which was conducted on 3.12.2008 was not an inspection of the officers of the Central Government and State Government rather it was inspection on behalf of the Company.

(15) The power under clause 7 of the Control Order, 2005 has been given to the authorised officer for the purpose of satisfying himself that the order 2005 or any order made thereunder has been complied with or any of the provisions of the Order2005 are being contravened. The contravention of orders issued under section 3 of the Essential Commodities Act are punishable under section 7 and other consequences have been laid down in the Essential Commodities Act, 1955 including the confiscation etc. The search and seizure thus under clause 7 of the Control Order 2005 relates to finding out as to whether any provision of the Control Order, 2005 has been contravened and any of the actions contemplated under Control Order, 2005 as well as Essential Commodities Act may result from such contravention. However, the inspection by the officers of the Company, its servants or agents may be for the purpose as provided for in the agreement between the parties dated 4.4.1993. Inspection by the agents of the company can thus, be for the purpose other than the search and seizure as provided in paragraph 7 of the Control Order 2005. The company which has given the dealership by contract entered between the parties has also right to determine as to whether the terms and conditions of the contract are being fully followed by the petitioners or not. Thus for inspection by the company for the purpose of finding out whether the covenants of the contract are being followed or not paragraph 7 of the Control Order may not be applicable. There is no conflict between the right of the Company to carry on inspection for the purpose of contract and the right to search and seizure given in paragraph 7 of the Control Order, 2005 both being not contrary to each other can survive together.

(16) The Division Bench of this Court in Vindhya Services Station Mirzapur v. Union of India (supra) had occasion to consider the similar issues in the said case. The petrol pump agency was given to the petitioner under a written agreement. The officers of M/s SGS India Pvt Ltd. inspected the outlet and conducted the marker test. The arguments was raised in the said case that under the Control Order, the inspection can be made only by an authorised officer and M/S S.GS. India Pvt. Ltd. has no jurisdiction to take the sample. Repelling the said arguments following was laid down in paragraph 11:

"The second argument of the petitioners is that under the Control Order, which is issued under the Essential Commodities Act, it is only the authorised officer who can carry out the taking of samples. The argument is misconceived. There is a two fold check upon adulteration: one at the level of Oil Marketing Companies and the other by the State authorities under the Essential Commodities Control Orders. In respect of the agreement between the Oil Marketing Company and their dealers the terms are governed not by the Control Order but by the agreement and the Marketing Discipline Guidelines."

(17) Thus, the submission of the petitioners that inspection dated 3.12.2008 being in breach of clause 7 deserves to be set aside on the ground of violation of Control Order, 2005 cannot be accepted.

(18) The submission next pressed by learned counsel for the petitioner is that test has to be conducted according to the specification as provided in the Marketing Discipline Guidelines 2005 and the test should conform to requirement of Bureau of Indian Standard Specification Nos. IS 2796 and IS 1460 for motor spirit and High speed diesel respectively. In the present case as noticed above, the marker test was conducted by inspecting team on 3.12.2008 at the outlet of the petitioners in which the sample collected from nozzle of the dispensing unit failed in so far as the petrol is concerned. Sample was collected on 3.12.2008 and was sent for laboratory test at Mughal Sarai laboratory of the Corporation. The petitioners were also called to appear in the laboratory test which was conducted on 5.12.2008. The sample collected on 3.12.2008 was also found adulterated in the laboratory test on 5.12.2008. The report of the test held on 5.12.2008 i.e. joint marker inspection has been given to the petitioner alongwith show-cause notice dated 9.1.2009. The submission that marker test was not sufficient as per Marketing Discipline Guidelines and the Control Order has to be considered. It is to be noted that in the Control Order, 2005, amendments were made w.e.f. 12.1.2007 by which the definition of marker was added and the definition of adulteration was amended. Amendments were also made in clause 8 of the Control Order. Paragraphs 2 (a), (fi), (t) are quoted as below:

2(a) "adulteration" means presence of marker in motor spirit and high speed diesel and/or the introduction of any foreign substance into motor spirit or high speed diesel illegally or unauthorisedly with the result that the product does not conform to the requirements of the Bureau of Indian standards Specification Numbers IS 2796 and IS 1460 for motor spirit and high speed diesel respectively or any other requirement notified by the Central Government from time to time;"

(f)"malpractices" shall include the following acts of omission and commission in respect of motor spirit and high speed diesel- (i) adulteration; (ii) pilferage; (iii) stock variation; (iv) unauthorised exchange; (v) unauthorised purchase; (vi) unauthorised sale; (vii) unauthorised possession; (viii) overcharging; (ix) sale of oil-specification product; and (x) short delivery; (fi) "marker" means a chemical substance approved by the Central Government from time to time for blending in kerosene and other petroleum products with the objective of preventing their diversion or adulteration of motor spirit or high speed diesel"

(t) "sale of off-specification product" means sale of motor spirit or high speed diesel by dealer of "having traces of marker and/or" quality not conforming to Bureau of Indian Standards Specification Numbers IS 2796 and IS 1460 for motor spirit or high speed diesel respectively"

(19) Paragraph 8 of the Order deals with Sampling of Product and testing. A reading of paragraph 8 indicates that where the product does not contain marker, the sample is to be collected to check whether density and other parameters of the product conform to the requirement of Bureau of Indian Standard Specification Numbers IS 2796 and IS 1460 for motor spirit and high speed diesel respectively. Paragraph 8 is quoted herein below:

"8. Sampling of Product and testing.-(1-A) The authorized officer under clause 7 shall draw the sample from the tank, nozzle, vehicle or receptacle, as the case may be, in the test kit and test the product with the aid of test kit, to check whether the product contains any traces of marker. If such traces are found in the product, the authorised officer shall record the same in triplicate which shall be jointly signed by him and the dealer or transporter or concerned person or his representative, as the case may be, and given one copy of such recording to the dealer or transporter or concerned person or his representative and another copy to the oil company concerned, as the case may be."

(1) "Where the product does not contain marker under sub-clause (1-A), the authorised officer." Under Clause 7 shall draw the sample from the tank, nozzle, vehicle or receptacle as the case may be, in clean aluminium containers, to check whether density and other parameters of the product conform to the requirement of Bureau of India Standard Specification Numbers IS 2796 and IS 1460 for motor spirit and high speed diesel respectively. Where samples are drawn from retail outlet, the relevant tank-truck sample retained by the dealer as per Clause 3(b) would also be collected for laboratory analysis. (2) The authorized officer shall take and seal six samples of 1 litre, each of the motor spirit or three samples of 1 litre each of the high speed diesel. Two samples of motor spirit or one of high speed diesel would be given to the dealer or transporter or concerned person under acknowledgement with instruction to preserve the sample in his safe custody till the testing or investigations are completed. Two samples of motor spirit or one of the high speed diesel shall be kept by the concerned oil company or department and the remaining two samples of Motor Spirit or one of High Speed Diesel would be used for laboratory analysis; (3) The sample label shall be jointly signed by the authorised officer who has drawn the sample, and the dealer or transporter or concerned person or his representative and the sample label shall contain information as regards the product, name of retail outlet, quantity of sample, date, name of the authorized officer, name of the dealer or transporter or concerned person or his representative; (4) The authorised officer shall forward the sample of the product taken within ten days to any of the laboratories mentioned in Schedule III or to any other such laboratory when it may be notified by the Government in the official Gazette for this purpose, for analysing with a view to checking whether the density and other parameters of the product conform to the requirements of Bureau of Indian Standard Specification Numbers IS 2796 and IS 1460 for motor spirit and high speed diesel respectively. (5) The laboratories mentioned in sub-clause (4) shall furnish the test report to the authorised officer within twenty days of receipt of sample at the laboratory. (6) The authorised officer shall communicate the test result to the dealer or transporter or concerned person and the oil company, as the case may be, within five days of receipt of test results from the laboratory for appropriate action."

(20) As noticed above paragraph 12 of the Government order relied by the petitioner and filed as Annexure-4 to the writ petition also indicates that if in the marker test the product fails there is no necessity of any further chemical analysis. In the present case, when the test was held on 3.12.2008, marker was found present hence, there was no further requirement of density analysis or any other analysis. The Control Order 2005 and the Government order clearly relies on the marker test for finding out adulteration, no error has been committed by the Corporation in cancelling the agreement relying on the marker test. Thus the submission that density and other specification was to be checked as per Indian Standard Specification Numbers is not applicable in the facts of the present case.

(21) The third submission of the learned counsel for the petitioners that marker test is not foolproof test and the said marker system has been reviewed by the Government of India. Copy of the letter dated 22.12.2008 has been brought on record as Annexure-18 which is a report submitted by the Director Marketing and Oil Companies. It is relevant to extract some part of the report which is quoted as below:

"The Marker System was introduced by the PSU oil companies w.e.f. 1.10.2006 in the country. The Kerosene released from the supply locations is being doped with the Authentix Marker system since the introduction of the Marker programme. The industry has been closely monitoring the effectiveness of the Marker programme and it has been our experience that the Marker system is found to be more effective than the traditional methods of inspections, BIS tests etc. to detect adulteration. The Marker legislation was enforced from 16.2.2007 and during the period from 16.2.2007 to 30.11.2008 there was 558 cases of adulteration detected thorugh the Marker system involving Ros and Tank- trucks. In order to identify more suppliers for Marker system, a Global Expression of Interest (GEOI) was floated by Interim order already granted shall continue. RandD on 26th July, 2008 on Industry basis. The details of the Mandatory Characteristics/Requirements of the Marker System included in GEOI are given as under: After inducing into the potential adulterants, the Marker should not be removable/tampered with by physical or chemical means. The marker should be compatible with potential adulterants. The Marker should be stable with potential adulterants. The Marker should be detectable in Ethanol Gasoline blends. The Marker System should provide simple field level testing to determine adulteration (i.e. test positive or test negative). The Marker should be cost effective. The Marker System should enable exact quantitative estimation of adulternation. Marker as well as the test reagents should have adequate shelf life, should be storable under ambient conditions and be portable to facilitate the field force in implementation of the Marker system. The conclusions drawn by the technical Committee based on Laboratory evaluation of the 3 Marker systems is as under:

1.1% marked Kerosence can be detected in MS and HSD except in Interim order already granted shall continue, branded HSD and BPC Branded MS. 2. Testing time required for one sample will be approximately 75 to 90 minutes as per recommended procedure i.e. 1 and2 as most of the samples will have to be tested for both procedures. This also requires substantial number of IAS columns for procedure 2 which cannot be reused. 3. Marked Kerosene can be laundered by Cone. Nitric acid and Charcoal. 4. Marker could not be detected when marked kerosene was exposed to sunlight. 5. Un-dyed Kerosene when marked does not meet saybolt colour specification as per IS: 1459.

(B) M/s Chematek: 1.1% marked kerosene can be detected in MS and HSD including Branded fuels. 2. Testing time required for one sample will be approximately 20 to 25 Minutes as per recommended procedure which is simple and requires common glassware. 3. Marked Kerosene cannot be laundered by 1% clay. However, marked kerosene can be laundered by 5% clay. Conc. Sulphuric acid, Conc. Nitric acid and Charcoal. 4. Marker can be detected when marked Kerosene was exposed to sunlight. 5. Undyed Kerosene when marked does not meet saybolt colour specification as per IS: 1459.

(C) M/s GFI, Israel Marker System offered by M/s Nandah Petrochemicals, Mumbai 1.1% marked kerosene can be detected in MS andHSD including Branded fuels. 2. Testing time required for one sample will be approximately 5 minutes as per recommended procedure. 3. This testing involves use of XRF analyser which has to be mounted on a vehicle and will require stabilized power supply or inverter. This analyser was brought pre calibrated by the party. The frequency of calibration and matrix effect of different fuels may have to be ascertained. 4. This Marker System in the Lab test was not found to be launderable with clay, acids, alkali. While 1% charcoal could not remove the Marker however about 20% lower concentration of Marker was observed with 5% charcoal treatment. The machine, however, was able to detect 1 % adulteration of 5% charcoal treated marked kerosene in fuel. 5. The addition of this Marker to Kerosene does not affect the Physico- chemjcal properties of Kerosene including saybolt colour. 6. The Marker can be detected when marked kerosene was exposed to sunlight. (a) The basic requirement of the Marker as stated in the GEOI was that "it should not be removable/tampered with, by physical or chemical means"

This condition is not met by M/s Authentix and M/s Chematek S.P.A. Italy in addition, the Authentix Marker could not be detected when exposed to sunlight and also in branded HSD of Interim order already granted shall continue. and branded MS of BPC. The Marker system of GFI offered by M/s Nandan Petro chemicals is found to be least launderable. (b) One of the mandatory requirements is also that the Marker System should provide simple field level testing to determine adulteration (i.e. test positive of test negative). The equipment of M/s GFI Marker system for detection of adulteration is bulky and heavy also requiring stabilised electrical power. The equipment is required to be calibrated at the frequency to be decided by the user and fitted in mobile vehicle for field testing of samples. Review of Marker System by MOP andNG: Secretary (PandNG) had taken a review meeting on Marker system on 10th December, 2008. In this meeting Interim order already granted shall continue. (RandD), on behalf of the Technical Committee had made a presentation on evaluation of the Global Expression of Interest (GEO). During the meeting the Industry advised MOPandNG that all the 3 evaluated Markers are not meeting 100% mandatory requirements of the GEOI. In this regard a letter has already been addressed by the industry to MOPandNG vide RSHQ: Policy dated 28th November, 2008 intimating that re- tendering. In respect of Marker system will be required. Further, in the intervening period MOPandNG was requested to make suitable amendments to the Control Orders as the contract with the current suppliers expires on 31.12.2008. However, Secretary PandNG advised that the Committee of Directors (Marketing) of the oil companies should examine all the aspects of the issue and submit their recommendations latest by 20th December, 2008. The Committee of Directors (Marketing) after examining all the aspects of the issue recommends as follows: 1. To re-tender for procurement of Marker system as none of the parties have fulfilled 100% of the mandatory requirements of the GEOI. A minimum time period of 6 months will be required to complete the process. 2. To amend the existing Kerosene Control Order which makes it mandatory to dope all Kerosene released from supply locations with Marker. The existing contract for procurement of Marker system expires on 31.12.2008 and effective 1.1.2009 Kerosene will have to be sold without doping of marker. 3. To amend MS-HSD control order as Marker tests will not be carried out at retail outlets effective 1.1.2009."

(22) The above report clearly supports the submission of the learned Counsel for the respondents that nothing wrong was found in the marker test which was effective till 31.12.2008. Marker test was statutorily introduced and was available on the date when the inspection was made. The submission of learned counsel for the petitioner that marker test is not foolproof test and cannot be relied, cannot be accepted.

(23) Learned counsel for the petitioner has also pl

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aced reliance on the Division Bench judgment of Krishna Kumar and another v. Sr. Supdt. of Police and others, 1998 Cri LJ 3806 (DB), for the submission that the product quality is to be tested in accordance with the bureau of Indian Standard Specification No. IS 1460. In the case of Krishna Kumar(supra) a first information report was lodged under section 3/7 of the Essential Commodities Act, 1955. The writ petition was filed challenging the said first information report. The challenge was made in the writ petition on the ground that sample taken from the petrol pump was said to be adulterated but the extent or exact quantity of the adulteration was not mentioned. All the writ petitions were dismissed. The Court considered and held that sample of the petrol and diesel was to be taken in accordance with clauses 7 and 8. The said case was not a case of termination of dealership by oil company exercising its right under the agreement between the parties but was a case challenging the first information report hence, it is clearly distinguishable. The judgment of learned Single Judge in M/s Satyam Filling Station fully supports the submission of the learned Counsel for the respondents. On the marker system following observation was made by Hon'ble Single Judge. "Learned counsel for the petitioner has also place reliance upon the affidavit filed on behalf of Bharat Petroleum Corporation in the Delhi High Court that marker test was not reliable. A perusal of the said affidavit which has been annexed as Annexure SA-6 to the Supplementary Affidavit shows that the petition that was filed in the Delhi High Court was for a direction for continuance of the "marker" system for which the contract had expired on 31st December, 2008 and bids for "marker" system pursuant to fresh notice inviting tenders on technical evaluation had failed to meet the product specifications. It is in this connection that it was stated in the affidavit that marker system that was introduced in February, 2007 has been discontinued by the order dated 31st December, 2008 issued by the Ministry of Petroleum and Natural Gas and the reasons for discontinuance was mentioned. Amongst the various reasons mentioned it was stated that the complaints had been received that it was possible to launder/remove or clear such "marker" from kerosene. Thus, it was not that the test was defective but because it was found that initially it was quite effective in detecting adulteration in petrol and diesel but subsequently as human brain was very inventive, complaints had been received that it was possible to remove the existing marker from the kerosene. The last contention of the learned counsel for the petitioner is that the dealership cannot be terminated on irrelevant or non-existent grounds. Learned counsel for the petitioner has placed reliance upon the decision of the Supreme Court in Harbans Lal Sahnia (supra). In this case the Supreme Court noticed that general allegations had been made by the Corporation against the dealer. In the present case, there are specific allegations against the petitioner. This decision, therefore, does not help the petitioner." (24) We have perused the impugned order dated 14.3.2009. The impugned order refers to relevant clauses of the agreement and has considered the reply submitted by the petitioners. All the points raised in the reply by the petitioners were considered and dealt with. We do. not find any error in the impugned order which may warrant any interference by this Court in exercise of writ jurisdiction under Article 226 of the Constitution of India. The writ petition is dismissed.
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