IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.17140 of 2008 M/S GAURI SHANKAR SHYAM BABU, a Partnership firm having its registered office at Station Road and Mahatma Gandhi Setu Road both the retail outlets office situated at Hajipur District Vaishali through its Senior Partner Sri Shyam Babu Prasad son of late Gauri Shankar Prasad, resident of village Hathsarganj, P.S. Hajipur Town, Distt- Vaishali. Versus 1. M/S HINDUSTAN PETROLEUM CORPORATION LTD. through its Chairman and Managing Director having its registered office at 17, JamshedJi Tata Road, Mumbai-400020. 2. The General Manager (North Central Zone), Hindustan Petroleum Corporation Ltd. Plot no. 01, Nehru Enclave,Gomti Nagar, Lucknow- 226010. 3. The Senior Regional Manager (Retail), M/s Hindustan Petroleum Corporation Ltd. 6th Floor, Loknayak Jai Prakash Bhawan, Dak Bunglow Road,Patna-800001. 4. The Area Sales Manager (Patna Region), M/s Hindustan Petroleum Corporation Ltd., 6th Floor, Loknayak Jai Prakash Bhawan, Dak Bunglow Road,Patna-800001. ----------- For the Petitioner : Mr. Mrigank Mauli Mr. Shailendra Kr.Singh For the Respondents: Mr. Rajnandan Pd. --- 3 11.12.2008 Petitioner is aggrieved by order of termination of his petrol retail dealership by the respondent- Hindustan Petroleum Corporation Limited pursuant to the Motor Spirit (Petrol) sample allegedly found not conforming to standard specification on chemical examination. Counter affidavit and rejoinder have been filed and with the consent of the parties, this writ application is being disposed of at the stage of admission itself. There is no dispute of facts. Petitioner’s retail outlets of both MS(Petrol) and HSD (Diesel) were inspected. Nozzle sample tests were done at the dealer’s premises and in his presence by a specialized processing known marker test. Marker test shows the colour blue, if there is no adulteration but turns pink, if there is adulteration . It is not 2 disputed that the marker test done in presence of the petitioner reveals no adulteration. The respondent- Corporation then took nozzle sample and contemporaneous tank lorry sample and sent them for chemical analysis at Ramnagar. So far as HSD is concerned, nothing wrong was found but so far as motor spirit is concerned, it failed RON test and the distillation test. The tank lorry sample showed RON at 91 against standard of 88 but the nozzle sample showed 86.7. This report was then furnished to the petitioner and petitioner’s reply was solicited. Petitioner raised two objections.Firstly, that contemporaneous depot samples were not tested and then they demanded second sample of the same to be retested in their presence. Notwithstanding the aforesaid , it was recorded that the reply was not satisfactory and as such the dealership was terminated on the allegation of adulteration. This has brought the petitioner to this Court. The issue, therefore, is whether in the facts aforesaid a drastic step like termination of dealership, a relationship which existed for over 40 years, could be taken.The testing procedures are prescribed by the Marketing Discipline Guidelines issued by the Ministry of Petroleum and Natural Gas in consultation with the nationalized Oil Company. It is not disputed that those guidelines provide that whenever samples are to be tested then at least three contemporaneous samples are to be tested . They are the depot sample of the Oil Company from which delivery is effected to the tanker for onward delivery to the 3 dealer. The second is the sample from the tanker, which delivers the product to the dealer and the third is the dealer sample. This is to safe guard the dealer from any testing or at earlier stage. It is only when the earlier two samples i.e. depot sample and the tank lorry sample are found to be good that action can be taken against the petitioner. Undisputedly, in the present case , even though obligation was on the respondent Corporation to get their samples and tested, for which a request was also made by the petitioner, it was not so done. Then the Marketing Discipline Guideline, it is not disputed, provides that when samples are taken, three contemporaneous samples of nozzle have to be preserved. If the dealer objects to the first testing , he has a right to get the second sample tested in his presence. Undisputedly, in the present case, in spite of dealer’s request, this was not done. In my view, the more drastic action the greater compliance to safe guard will be insisted by the Court. These were the minimal safe guard available to a dealer but they were not adhered to by the Corporation. Once it is so then no reliance can be placed on the report obtained by the Corporation behind the back of the petitioner. It loses all authenticities. If that be so, then there is no report on which the Corporation could have validly acted. I may, however, notice one curious thing that the standard RON for this petrol (MS) is said to be 88. Court wonders how the tank lorry sample tested 91 and was held to be a good sample and at the same time the dealer sample tested 86.7, which was held to be bad. 4 Court wonders that if the standard ought to be 88 then how was the Oil Company supplying petrol which did not conform to the standard specification. It is needless to go into this aspect of the matter in view of the findings above. In view of the findings that the test ,on the basis of which the petitioner has been proceeded against, having been held to be not authentic for the purposes of action taken, the action taken based on such a report cannot be sustained. Thus, the order terminating the dealership of the petitioner cannot be sustained and is quashed accordingly. The writ petition is accordingly allowed. SINGH (Navaniti Pd. Singh, J.)