IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8329 of 2007 M/S AYOMA SERVICE STATION Versus THE UNION OF INDIA & ORS ----------- 7 18.9.2009 The petitioner is aggrieved by the Marketing Discipline Guidelines amended by Ministry of Petroleum & Natural Gas, Central Government so far as it relates to marker test. The petitioner has been dealing in petroleum products of Bharat Petroleum Corporation Limited (hereinafter referred to as „the BPCL‟) since long. He submits that no irregularity has been found in conduct of his business earlier. For the first time , he has been charged of irregularity as it failed in marker test. The Marketing Discipline Guidelines has been amended in the year 2005 by inclusion of marker test in the definition of adulteration. A copy of the amendment is annexed as Annexure-2. The amendment has been brought for the purpose of verification of any adulteration by the process of blending petrol and diesel with the help of any chemicals. The marker means a chemical substance approved by the Central Government from time to time for blending of SKO and other petroleum products with objective of preventing their diversion or adulteration of MS and HSD. The test kit has been provided to all the companies to verify the presence of marker in the petrol and high speed diesel being supplied by these petrol pumps. However, the petroleum dealers having not been 2 provided with test kit to verify the marker present in the petrol and diesel at the threshold of the very supply of it to the petrol pumps. In other words, if adulterated petrol or diesel is supplied by the company, there would be no check on it and the petrol pumps would have to pay the price. Thus the petitioner contends that the inclusion of marker in the definition of adulteration in the Marketing Discipline Guidelines affects Articles 14, 19(1)(g) and 21 of the Constitution of India. The petitioner states that usually supply made is tested on the basis of its density. At the time of unloading the petroleum dealers could verify intensity of such density to match with the density recorded by the supplier. The petitioner further states that several writ petitions have been filed in different High Courts. A Division Bench of the High Court of Orissa in Writ Petition(C) No.1200 of 2007/Misc.Case No.1101 of 2007 observed as follows: “It is provided that the opposite party may make an endeavour to sell the tanker in a computerized way, the password/locking number of which may be known to the dealer only to avoid any complicacy. It is further directed that the dealers shall also be provided with marker testing kits so that at the time of receiving fuel they may test the same and may opt for accepting the same or not. Till such kit is provided, no coercive action shall be taken in such respect”. 3 On this basis, the petitioner states that the test of marker has to be verified from the stage of first sell itself and not from the last sell made by the petroleum dealers. The marker test stipulates that if the oil or diesel is not up to the specification or if the colour remains orange in the test, the sample supplied by the dealers would be considered to be good. Learned counsel for the petitioner submits that inspection took place on 21.3.2007 and no adulteration in the sample was found as the test showed the colour as orange. But surprisingly a letter dated 26.3.2007 was communicated stating that marker test of HSD was found to be positive on another test conducted on 26.3.2007. The petitioner states that the aforesaid test was conducted behind his back and that too the pump was closed. Learned counsel appearing on behalf of the BPCL states that this writ petition has become infructuous as after filing of the writ petition vital developments have taken place. The HSD Sample which was tested in presence of the petitioner where the retail out let sample failed in the marker test. The petitioner was given show cause notice and personal hearing on 1.10.2008. The retail out let dealership of the petitioner has been terminated on 27.4.2009. The respondent further states that on similar points a writ petition bearing C.W.J.C.No.3575 of 2007 has already been filed on behalf of the Bihar Petroleum Association challenging the amendment in the MDG 2005 and 4 KHAN consequent implementation of marker test by the Oil Marketing Companies. The said writ petition has been admitted by a Division Bench of this court by order dated 28.1.2009. He further submits that in view of the fact that the dealership of the petitioner has been terminated during the pendency of this writ petition by order dated 27.4.2009, this writ petition has become infructuous. Learned counsel for the petitioner submits that the respondents are taking the follow up action pursuant to termination and are dismantling the set ups. In the backdrop of the aforesaid fact, this writ petition is being disposed of with liberty to the petitioner to challenge the order of termination before the appropriate authority. Status quo, as of today, would be maintained for four weeks to enable the petitioner to take resort to appropriate remedy. (S.P.Singh,J)