IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 11172 of 2008 M/S SUPER HIGHWAY SERVICE Versus M/S HINDUSTAN PETROLEUM CORPORATION LTD & ORS ----------- For the petitioner : M/s N K Agrawal, Sr Advocate & Shailendra Kumar Singh, Advocate For the HPCL : Mr Raj Nandan Prasad, Advocate ----------- 2 15.10.2008 Petitioner has a retail petroleum outlet of Hindustan Petroleum Corporation Limited. It has one underground tank of motorspirit (petrol) and two underground tanks of HSD (diesel). On 26.05.2008, M/s SGS India Private Limited conducted a spot verification of stocks at the petitioner’s petrol pump. It found that the nozzle sample of one of the diesel underground tanks was found positive for adulteration and a report, accordingly, was drawn up which is Annexure-3. On basis of the aforesaid report, separate set of samples were taken and sealed and given to the Oil Company. Petitioner was then issued show cause and, thereafter, their dealership has been cancelled which actions are impugned in these proceedings. Respondent-Oil Company has appeared and filed a counter affidavit. With the consent of parties, the writ application is being heard and disposed of at the stage of admission itself. Shri N K Agrawal, learned Senior Counsel appearing in support of the writ application submits that the market guidelines, which is binding on the Oil Company and pursuant whereto action of terminating the dealership has been taken, clearly stipulate that once a - 2 - sample is reported for adulteration, separate contemporaneous sample is then to be tested in the laboratory in presence of the dealer and if this confirms adulteration then punitive action is to be taken. So far there is no dispute amongst the parties. Shri N K Agrawal submits that whatever may be the deficiency in the initial inspection when the second test had to be done, it was mandatory for the petitioner to be requested to be present at the time of testing. This was not done in the present case. No notice was issued to the petitioner nor was the petitioner informed. In the counter affidavit, it is stated that the initial testing at the petrol pump was done on 26.05.2008. Separate samples were also taken and preserved. On 28.05.008, petitioner was informed that testing at the Corporation’s laboratory would be done on 29.05.2008 but the dealer’s representative refused to acknowledge the said letter. As such, testing was done on 29.05.2008 in absence of the petitioner wherein the sample again proved adulterated. Mr Agrawal for the petitioner points out that it is not understandable as to what was the great hurry in conducting the test. If dealer’s representative had refused to acknowledge the letter, the same could have been sent by registered post and the testing delayed by a few days. He states that testing in presence of the dealer at the premises of the Oil Company is a very valuable safeguard against otherwise drastic power of termination of dealership. The Oil Company, except for the statement in the counter affidavit that the dealer’s representative refused to acknowledge the letter, brings on record nothing more. In my view, mere statement on affidavit that - 3 - attempt to inform petitioner was made which proved futile cannot be accepted in view of the consequences that are to follow. If the petitioner’s representative had refused to acknowledge the letter, the same could have been sent by registered post and testing delayed as there was no urgency in the matter of such a nature that the testing had to be done on the very next day, the petrol pump already having been sealed. In fact when the petitioner was asked to show cause in which it was mentioned that petitioner was granted opportunity to be present at the time of retesting, the petitioner categorically replied stating that he had received no such information. It was further stated that the person who is supposed to have sent the letter on 28th of May 2008 from Barauni was in fact on that day not even in Barauni, a fact not denied in the counter affidavit. These facts, in my view, clearly show that the requirement of retesting in presence of the petitioner was not done as per the marketing guideline. This itself causes severe prejudice to the petitioner. Thus, the decision making process, in my view, stands vitiated. If the decision making process stands vitiated, the decision cannot stand. In view of the facts aforesaid, I am constrained to hold that the order impugned being Annexure-16 dated 09.09.2008 is not sustainable and is quashed accordingly. The writ application is allowed. M.E.H./ (Navaniti Prasad Singh)