IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1240 of 2009 1. M/S HINDUSTAN PETROLEUM CORPORATION LIMITED through its Chairman and Managing Director having its registered office at 17, Jamshedji Tata Road, Mumbai-400020. 2. The General Manager(Eastern Zone), Hindustan Petroleum Corporation Limited, 6 Church Lane, Kolkata-700001. 3. The Sr. Regional Manager (Retail), Hindustan Petroleum Corporation Limited, 6th Floor, Lok Narayan Bhawan, Dak Bungalow Road, Patna. --------Appellants. Versus SMT.MANJU DEVI wife of late Satendra Kumar Singh, Proprietor of M/s Sahid Satendra Filing Station, Resident of Vill.-Narayanpur, P.S.-Narayanpur, Distt.-Bhojpur------------------------------------------------ ---------------------------Respondent. ----------- 5. 30.11.2010 The Letters Patent Appeal arises out of an order dated 29.4.2009 in Civil Review no.84 of 2009 whereby and whereunder learned single Judge has rejected the prayer for reviewing the order dated 12.11.2008 in C.W.J.C. no.13045 of 2007 with certain observation. The aforesaid writ application was filed by respondent-writ petitioner questioning an order of cancellation of petroleum dealership on the ground of adulteration. Learned single Judge in his order dated 12.11.2008 keeping in view that the inspection of the petrol pump was conducted on 27.5.2007 and contemporaneous sample was taken and tested in presence of the petitioner on 6.6.2007 had held that the 2 circular dated 18.2.2008 providing for testing of two tank lorry samples could not be made applicable and had disposed of the writ application in the following terms :- “ However, considering the stringent and hard consequences that follow from an alleged adulteration, all this Court can do is to direct the Oil Company to get tank lorry sample of the immediate preceding load if available in proper condition to be tested and then take a fresh decision in the matter.” The prayer for review was in fact confined as with regard to the aforementioned direction wherein respondent-appellant-Corporation had taken a plea that there could not be marker test now of contemporaneous sample of earlier tank lorry load because such marker test had been discontinued and the service of the S.G.S. Enterprises had also been discontinued with effect from 1.1.2009. The appellant-Corporation had therefore taken a plea that the sample of earlier tank lorry load could not have served any useful purpose because such samples were of May, 2007. On such a prayer for review the learned single Judge in the order dated 29.4.2009 while disposing of 3 the Civil Review No.84 of 2009 had held as follows :- “ In my view, this Court can not pass any order in this review jurisdiction. However, it can only observe that if this Corporation can not conduct proper sampling then only the benefit of doubt must come in favour of the dealer because the consequences are grave. If the dealer could not be successfully pinned down on charge of adulteration then giving the benefit of doubt, the Corporation may restore the dealership, keeping the conduct of the dealer under watch. This is all that can now be done, this application is accordingly disposed of. ” Mr. Yaduvansh Giri, learned counsel appearing on behalf of the appellant-Corporation has submitted that once the learned single Judge was not inclined to review his earlier direction recorded in the order dated 12.11.2008 in C.W.J.C. no.13045 of 2007, there should not have been any further observation which had the effect of directing restoration of dealership to the respondent-writ petitioner. He has also tried to explain that even the earlier direction contained in order dated 12.11.2008 was unworkable and impractical in asmuchas testing of tank lorry sample of the immediate preceding load, being of a 4 period of May, 2007, could not have clinched the issue relating to allegation of adulteration against the writ petitioner. Per contra, Mr. Basant Kumar Choudhary, learned counsel appearing on behalf of the respondent- writ petitioner has submitted that once the Corporation had filed an application for review of the earlier direction contained in the order dated 12.11.2008 in the connected writ petition, conceding non-availability of the tank lorry sample of the immediate preceding load, the resultant observation made in the order while disposing of the review for restoration of the dealership cannot be faulted either on fact or in law. In our considered opinion, in absence of an appeal by the Corporation against the order dated 12.11.2008 in C.W.J.C. no.13045 of 2007 directing the appellant-Corporation to get tank lorry sample of the immediate preceding load tested for taking a fresh decision has become final and cannot be disturbed by us and to that extent agreeing with learned counsel for the writ petitioners we would not like to say anything for that inasmuch as the Corporation has to reconsider 5 the matter as directed by learned single Judge for taking its decision in terms of the direction given in the order dated 12.11.2008 in C.W.J.C. no.13045 of 2007. We, however, fully agree with the submission of Mr. Giri, learned senior counsel appearing on behalf of appellant-Corporation that observation made in the last paragraph in the impugned order dated 29.4.2009 in review application filed by the Corporation to the following effect “ However, it can only observe that if the Corporation can not conduct proper sampling then only the benefit of doubt must come in favour of the dealer because the consequences are grave. If the dealer could not be successfully pinned down on charge of adulteration then giving the benefit of doubt, the Corporation may restore the dealership, keeping the conduct of the dealer under watch.” was well beyond the scope of review and in fact it would amount to adding something which was not originally incorporated in the directions given by the learned Single Judge in his original order dated 12.11.2008 in C.W. J.C. no.13045 of 2007. Under the above circumstances, we set aside the aforementioned observation in the impugned order dated 29.4.2009 and 6 to that extent this appeal must succeed. In the result, this appeal is allowed and the aforesaid observation made in the last paragraph of the impugned order dated 29.4.2009 is set aside. Sudip ( T. Meena Kumari, J.) ( Mihir Kumar Jha, J. )