IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5120 of 2009 M/S BAJRANGBALI SERVICE CENTRE, M.G. Setu Road, Chaurasia Chowk, Hajipur, Vaishali, through its Proprietor Mala Kumari, W/o-Sri. Ashok Kumar Choudhary, resident of M.G. Setu Road, Chaurasia Chowk, Hajipur, Vaishali. ……..Petitioner Versus 1. Indian Oil Corporation Limited, a Company registered under the Indian Companies Act, 1956, having its registered office at G-9, Ali Yavar Jung Marg, Bandra(East), Mumbai-400051, through its Chairman. 2. Senior Divisional Retail Sales Manager, Indian Oil Corporation Limited, Block-A, Maurya Lok Complex, IIIrd Floor, Dak Bungalow Road, Patna. 3. The General Manager, Indian Oil Corporation Limited (Marketing Division), 5th Floor, Lok Nayak Jai Prakash Bhawan, Dak Bungalow Road, Patna. 4. Deputy Manager, Retail Sales, Indian Oil Corporation Limited, Block-A, Maurya Lok Complex, III Floor, Dak Bungalow Road, Patna. 5. Senior Divisional Retail Sales Manager, Indian Oil Corporation Limited, Block-A, Maurya Lok Complex, IIIrd Floor, Dak Bungalow Road, Patna. ……..Respondents. ----------- For the Petitioner : Mr. Mrigank Mauli, Adv. For the Respondent : Mr. Kali Das Chatterjee, Adv. : Mr. Amlesh Kumar Verma, Adv. -------------- 02. 22.04.2009 Petitioner’s retail outlet was inspected and allegedly it failed the Marker test. The Tank Lorry sample was not at first tested. Sales were suspended then after great persuasion the Tank Lorry sample was tested and those failed. As such petitioner could not proceed on that basis. As sales were suspended the account of stocks resolution has now taken up and positive variations were alleged and it was alleged that certain accounts could not be produced. On basis thereof notice was issued to the petitioner. Petitioner - 2 - responded and clearly stated that the Totalizer Meter being sealed was old about which they had long before the inspection twice complained that it was not recording readings correctly. Those reports are there with the Respondent Indian Oil Corporation itself. On basis on those complaints petitioner explained that there was no such variation. With regard to non-production of Register etc. is concerned, it was stated that they had been seized by the Sales Tax Department and as such could not be produced. Petitioner also states that subsequently the Corporation itself sought permission from the Weights and Measure Department to break the seal of the Totalizer. Petitioner’s submissions are that this raises a presumption of non tampering of the Totalizer which was found sealed. Petitioner’s explanation not having been found valid, what is said is that petitioner has tampered with the Totalizer to support his explanation. It is submitted that, this on the face of it, it is wrong in as much as the Corporation itself had petitioned and sought permission to break the seal of the Totalizer. In this view of the matter, it is submitted that the order by which the agreement has been cancelled can not be sustained. Having heard Mr. Chatterjee for the Corporation and Mr. Mauli for the petitioner and considered the matter, in my - 3 - view, the impugned order itself indicates that the impugned order is appealable to the Executive Director (Retail Sales) within a period of one month. Petitioner still has time to file an appeal. Learned counsel for the petitioner submits that he has genuine and bona fide apprehension that the appellate authority would only reaffirm the order of the Corporation itself and appeal would only be an empty formality. In my view, he should not raise such a presumption at least at this stage. Let appellate authority pass an appropriate order on an appeal to be filed by the petitioner. Learned counsel then states that some time has been spent before this Court in pursuing this remedy and as such time to file an appeal may be extended. Considering the aforesaid which appears to be reasonable, the Appellate Authority would entertain the appeal if the same is filed by 8th of May, 2009. The Appellate Authority would not be prejudiced by either the order already passed and challenged before it or by non interference by this Court and to take a decision on its own merits based on the facts as pleaded before it. With these observations and directions, the writ application stands disposed of. Shageer (Navaniti Prasad Singh, J)