IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.586 of 2009 SUNIL KUMAR, son of Sri Ram Ishwar Prasad, resident of Village & P.O.- Mandachh, Via- Ekangersarai, P.S.- Ekangersarai, District Nalanda Versus 1. The Bharat Petrolium Corporation Limited through its chairman cum Managing Director having its registered office at Bharat Bhawan, 4 & 6th Currimbhoy Road, Ballard Estte, Mumbai 400001 2. The Chairman cum the Managing Director BPCL, Bharat Bhawan 4 & 6th Currimbhoy Road, Ballard Estate, Mumbai 400001 3. The General Manager, BPCL, Kolkata 4. The Area Marketing Manager, BPCL, Exhibition Road, Patan 5. The Territory Manager (Retail) Barauni (Retail Territory) NH-31 at & P.O.- Papraur, District Begusarai ----------- 03/ 09.10.2009 Counter affidavit has been filed on behalf of Bharat Petroleum Corporation Ltd.(hereinafter referred to as the Corporation), which is taken on record. 2. Heard learned counsel for the parties. 3. Petitioner entered into dispensing pump and selling agreement with the Corporation in lieu thereof, he was granted licence and established a retail outlet. Retail outlet as also the tank lorry from which supplies obtained were subjected to marker test, both the tank lorry and petitioner failed in the result of the marker test and appreciating such failure by the petitioner, his dealership agreement has been cancelled under the impugned order dated 5.12.2008, Annexure-8. 4. It is submitted on behalf of the petitioner that as the tank lorry wherefrom the supplies were made to the retail outlet also failed the marker test, petitioner cannot be held responsible for adulteration of the product which failed marker test at his outlet. 5. Counsel for the Corporation, however, pointed out that - 2 - the dealership agreement of the petitioner has not been cancelled only on the ground of petitioner having failed the marker test, but also on the ground that he reconstituted the partnership agreement violating the terms of the dealership agreement dated 15.3.1991 for which petitioner offered no explanation in spite of two show cause notices issued and served on him. 6. Having heard counsel for the petitioner and the Corporation, I am of the view that in the special facts of this case petitioner should challenge the order of the Territory Manager dated 5.12.2008, Annexure-8 before the superior officer of the Corporation, namely, the Area Marketing Manager, Respondent no.4 and if the Area Marketing Manager is satisfied that petitioner cannot be held liable for failing in the marker test as also for violating the terms of the dealership agreement by reconstituting the partnership agreement and for valid reasons he could not respond to the two show cause notice, Area Manager shall pass appropriate orders in accordance with law, provided petitioner files representation along with a certified copy of this order within one month from the date of receipt of the certified copy of this order, whereafter the Area Marketing Manager shall dispose of the representation within another one month. 7. It is, however, made clear that this Court has not expressed any opinion on the merits of the case on both the counts. 8. This writ application is, accordingly, disposed of. Arjun/ (V.N. Sinha, J.) - 3 -