1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 194 OF 2007 1) Bhogilal Manikchand Shah ) Age: Major, Occ: Business, ) R/at : Pethnaka, Islampur, ) Tal. Walwa, Dist. Sangli. ) 2) Satish Manikchand Shah ) Age: Major, Occ: Business, ) R/at : Pethnaka, Islampur, ) Tal. Walwa, Dist. Sangli. ) Above partners through ) their partnership firm ) M/s. Manikchand Gagaram) .... .... Petitioners. VERSUS 1) The Authorised Officer, ) Anti Adulteration Cell, ) Ministry of Petroleum, ) Add: Western Region, ) 1 BPCL Colony, Opp. To ) ICICI Tower, Bandra­Kurla ) Complex, Bombay – 51. ) 2) Union of India, ) Ministry of Petroleum and ) Natural Gas, NEW DELHI. ) 3) The Indian Oil Corporation) Limited, through its ) 2 Marketing Division, ) Maharashtra State, being ) situated at Badamia Mansion ) Keshavrao Khade Marg, ) Mahalaxmi, Mumbai. )... .... Respondents. Mr. Rahul Kulkarni for the Petitioners. None for the Respondents. CORAM : SMT.RANJANA DESAI, J. and A. A. SAYED, JJ. DATED : 8TH OCTOBER, 2009. JUDGMENT (Per A.A.Sayed, J.) : 1. By the present writ petition, the petitioners are seeking to quash and set aside the order dated 25th November, 2003 of respondent No.3­ Indian Oil Corporation Limited, whereby the retail outlet/dealership of the petitioners came to be terminated. 2. The retail outlet/dealership was granted to the petitioners by the respondent No.3 Corporation, by an agreement dated 3rd December, 1967. On 11th October, 2003 at 8.00 hours, the Anti Adulteration Cell of the 3 Ministry of Petroleum visited and inspected the retail outlet and found certain lapses on the part of the petitioners. Show cause notice dated 12th October, 2003 was issued to the petitioners calling for an explanation regarding the lapses. The petitioners vide letter dated 20th October, 2003 submitted their explanation and by the impugned order dated 25th November, 2003 the dealership of the petitioner was terminated. 3. At the very outset, we take note of the fact that the petition is filed on 4th December, 2006 challenging the order dated 25th November, 2003. Thus the petition is filed after more than 3 years of the passing of the impugned order. The explanation for the delay is sought to be explained in para 8 of the petition by making a reference to the arbitration between the parties. We are not at all satisfied by the explanation given by the petitioners for the inordinate delay of more than 3 years in filing the writ petition. Since the petition suffers from inordinate delay and laches, we are not inclined to entertain the petition and on this count alone we dismiss the petition. That apart, we find that the award which was initially passed in favour of the petitioners in the arbitration proceedings was set aside by this Court and as on the date of filing of this 4 petition, the arbitration appeal filed before the Division Bench was pending. The subject matter in the Arbitration Appeal and the present writ petition being the same, namely, termination of the retail outlet/dealership Agreement, we do not see how the present petition, which appears to be filed as an afterthought after 3 years, apparently to get over the order of the Single Judge of this Court setting aside the award, can be entertained. We, therefore dismiss the petition on this count also. 4. Even otherwise, we have gone through the letter dated 20th October, 2003 whereby the petitioners have given pointwise explanation to the show cause notice. The same is reproduced hereunder: “Point No.1. : Short delivery in 5 litre measure (avg. 25 ml.) Though the DU s is very old, the shortages are actually within limits. The recorded shortages are not very true and were observed after 15 litres of non stop delivery. Point Nos.2 & 4: Density and quantity variation: We were planning to place a order for 12 ki HSD on IOC on 10.10.03. However, it could not be placed for financial reasons. The other shift in charge in the morning was unaware and one of the vehicles which had come for refueling (Driver absent/ documents unavailable) was decanted in the morning as he was 5 presuming that the vehicle was of HSD of order on 10.10.03. He should have checked the documents before decanting. Point No.3 : (Additional tank) The tank is an old tank and was never in use.” 5. From a perusal of the show cause notice and the explanation of the petitioners as reproduced above, it is evident that no satisfactory explanation has come forth from the petitioners for the lapses. Learned Counsel for the petitioners has placed on record copies of Marketing Discipline Guidelines and the Specification for Diesel Fuels (Second Revision) issued by the Bureau of Indian Standards and has sought to explain that the procedure as required for sampling as described in the Marketing Discipline Guidelines have not been followed and that the density variation was within the prescribed limit. Having gone through the explanation dated 20th October, 2003 reproduced above, given by the petitioners to the show cause notice, we do not find that this ground has been taken by the petitioners at all in their explanation. 6. It is not possible for us to accept the submission on behalf of the petitioners that other dealers whose premises were inspected and 6 lapses were found have been let off lightly. It is noted that no malafides have been alleged by the petitioners against the respondents. The inspection Report is a Joint Inspection Report. Obviously, therefore, the petitioners/their representatives were present at the time when the inspection was carried out. 7. For the aforesaid reasons, even on merits, we find no substance in the petition. The petition is dismissed. No order as to costs. 8. We make it clear that this order shall not come in the way of the Arbitration Appeal filed by the petitioner, if the same is still pending. Sd/­ (SMT.RANJANA DESAI, J.) Sd/­ (A. A. SAYED, J.)