Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 1881 of 2007 (M/S) M/s Durga Filling Station Rainta District Udham Singh Nagar Through its Proprietor Anand Singh Rawat. ...........Petitioner. Versus 1. Indian Oil Corporation Marketing Division Dehradun Divisional Office 28/3 Prakash Nagar Eedgah District Dehradun. 2. Deputy General Manager (R.S.) Haldwani, 6/346, Kalawat Colony Haldwani, District Nainital. ............Respondents. Shri Sharad Sharma, Advocate for the petitioner Shri Rahul Counsel and ms. Puja Banga, Advocates for respondents. Hon’ble Prafulla C. Pant, J. By means of this writ petition, the petitioner has sought writ in the nature of certiorari quashing the order dated 04.10.2006 (copy annexure-1 to the writ petition), passed by respondent No. 2, whereby sale through the petrol pump run by the petitioner is advised to be stopped. A further mandamus has been sought directing the respondents to permit the petitioner to sell the commodities supplied by the respondents through his retail outlet. 2. Heard learned counsel for the parties and perused the affidavit, counter affidavit and rejoinder affidavit filed on their behalf. 3. Brief facts, as narrated in the writ petition, are that petitioner was granted dealership by the Indian Oil Corporation to run its retail outlet in Rainta, in the year 2001. Since then the petitioner was running the petrol pump in terms of the agreement between the parties. However, on 04.10.2006, the respondent passed the impugned order without giving any opportunity of being heard, and directed the petitioner to stop the sale through the outlet M/s Durga Filling Station (run by the petitioner). It is pleaded by the petitioner that the functioning of the outlet run by the petitioner was clean and umblemished. It is stated that the petitioner maintained all the necessary record. The density of the petrol and diesel sold by the petitioner was well within the permissible limit. It is stated that on 20.09.2006, respondent No. 2 with ulterior motive got inspected the petitioner’s outlet and tested the density of the petrol (Motor Sprit) and diesel (HSD) but nothing adverse was found by the inspection team. It is alleged that no part of the samples collected by the Inspecting team was given to the petitioner and the procedure provided in Rule 7 and 8 relating to taking samples was violated. Merely for the reason that only one attendant was present at the time of inspection and that the sale at the outlet was poor, cannot be a ground to suspend the same. According to the petitioner the reason for poor sale was due to the opening of the new outlet by Cooperative society with the name Kisan Seva Kendra. 4. In the counter affidavit filed on behalf of the respondents, a preliminary objection is raised that in the terms of agreement, a dispute between the parties can to be referred to arbitration. In parawise reply, it is stated that under Special Anti Adulteration Drive, inspections were made through out India under the directions of Ministry of Petroleum and Natural Gas (Government of India). Samples were drawn from the tank at M/s Durga Filling Station (petitioner) and sent for testing. On testing it was found that the sample did not meet IS specifications on the final boiling point parameter and as such, dealer was issued impugned order dated 04.10.2006, directing him to stop the sale of the commodities supplied by the respondents, through his outlet. It is stated in the counter affidavit that petitioner was present at the time when the samples were taken. It is further pleaded that the allegations against the respondent No. 2 and team of inspectors are false. The density which was found within parameter, as mentioned in inspection report is done with the help of thermometer and Hydrometer only, while in the lab, the testing is done as per the provisions under MDG 2005. It is further stated that a show cause notice was issued to the petitioner on 03.10.2006, but he did not reply the same. 5. In the rejoinder affidavit filed on behalf of the petitioner, it is stated that clause relating to arbitration has no application to the proceedings under Article 226 of Constitution of India. As to the inspection made on 20.09.2006, the averments made in the writ petition are reiterated. 6. Admittedly, the petitioner has been given license to run the petrol pump by the Indian Oil Corporation in terms of the agreement between the parties. A copy of agreement filed with the counter affidavit shows following arbitration clause in the agreement. “Any dispute of difference of any nature what so ever or regarding any right, liability at omission or account of any of the parties here to arising out of or in relation to this agreement shall be referred to the soule arbitration of the direction marketing of the Corporation, or of some Officer of the Corporation who may be nominated by the Director Marketing. The Dealer will not be entitled to raise any objection to any such arbitrator on the ground that the arbitrator is an officer of the Corporation or that he has to deal with the matters to which the contract relates or that in the course of his duties as an officer of the Corporation he had expressed views on all orany of the matters in dispute or difference. In the event of the arbitrator to whom the matter is originally referred being transferred or vacating his office or being unable to act for any reason the Director Marketing as aforesaid at the time of such transfer, vacation of officer or enability to act shall designate another person to act as arbitrator in accordance with the term of the agreement. Such person shall be entitled to proceed with the reference from the point at which it was left by his predecessor. It is also at term of this contract that no person other than the Director Marketing or person nominated by such Director Marketing of the Corporation as for said shall act as arbitrator hereunder. The award of the Arbitrator so appointed shall be final, conclusive and binding on all parties to the Agreement, subject to the provision of the Arbitrator Act, 1940, or any statutory modification of or a re-enactment thereof and rules made thereunder and for the time being in force shall apply to the arbitration proceedings under this clause.” In view of the above clause, the petitioner could have got referred the dispute to arbitration. But in the opinion of this Court, since the writ petition has been already admitted and at the stage of final hearing it would not be proper to throw the writ petition on said technical ground. 7. But on merits after hearing the learned counsel for the parties, this Court does not find it to be a fit case to interfere with the impugned order. From annexure-3 to the counter affidavit, it appears that the sample taken from the petitioner-Durga Filling Station, failed to meet the specification in respect of final boiling point in distillation test. As such, the respondents were well within their rights to advise the petitioner not to make sale of the commodities (adulterated) through his outlet. After all, petitioner is licensee and agent of the respondent, and if permitted to sell adulterated commodity it would have affected goodwill of the respondents. 8. Shri Sharad Sharma, learned counsel for the petitioner drew attention of this Court to the fact that notice to show cause was issued to the petitioner on 03.10.2006, and reply was to be sent within 15 days while the impugned letter was issued on the very next day i.e. 04.10.2006. In this connection, it is further contended that practically the petitioner was not given any opportunity of being heard before the impugned order was passed. Having heard learned counsel for the parties, and after going through the papers on record, this Court finds that show cause notice was not given as to why the petitioner should not be advised to stop the sale but for further action against him. It cannot be said that meanwhile the respondents should have permitted the petitioner to make sale of the allegedly adulterated commodities. Therefore, this Court does not find any illegality in the impugned order whereby the petitioner was advised not to make sale of the commodities from his retail outlet. 9. On behalf of the petitioner, referring to provisions of Motor Sprit and High Speed Diesel (Prevention of Malpractices in Supply and Distribution) Order, 1990, and Government Order dated 1459/29.07.97-73 PP/91, dated 25.04.1997, issued by the U.P. Government, it is argued that certain procedure is to be followed before checking the adulteration in petrol or diesel. In the opinion of this Court, the reference to said Order of 1990 and Government Order is misconceived as the same applies to the officers of State Government and it has no application to the checking made by the respondents. 10. For the reasons as discussed above, this Court does not find any force in the writ petition which is liable to be dismissed. The writ petition is dismissed. (Prafulla C. Pant, J.) Dt. 05.11.2008 Sweta