SHIVAPRAKASH SERVICE STATION AUTHORIZED DEALER OF BHARATH PETROLEUM CORPORATION LTD. BY ITS PROPRIETOR Vs. BHARATH PETROLEUM CORPORATION LTD., A GOVERNMENT OF INDIA ENTERPRISE REP. BY ITS TERRITORY MANAGER (RETAIL) AND THE DEPUTY MANAGER SALES B

JUDGEMENT

(1.) THE petitioner having initially filed the petition has thereafter amended the same. The petitioner has sought for quashing the order dated 08.11.2008 (Annexure -M) passed by the first respondent as illegal and arbitrary. The petitioner has also sought for declaring that the alleged marker test on HSD carried out on 30.07.2008 at the petitioner's retail outlet by M/s. SGS Agency on behalf of the first respondent is without any authority, unsustainable, illegal and void. The facts in brief are that the petitioner was running the retail outlet of the respondents at Honnalli Road, Basavapatna. The outlet was originally allotted to the proprietor's mother -in -law Smt. P.N. Sarvamangalamma on 26.07.2004 under the Freedom Fighters Category reserved for Women. The letter of appointment was issued on 25.02.2005. She died on 28.11.2005 leaving behind the present proprietor of the petitioner, i.e., her daughter -in -law and son. On the request of the petitioner, the dealership was continued with effect from 17.02.2006. The petitioner claims to have run the retail outlet as per the conditions stipulated without any complaints from any one. On 30.07.2008 at 2.30 p.m., the employees belonging to M/s. SGS India Private Limited ('SGS' for short) inspected the outlet and conducted test of the product. According to the petitioner, the test was conducted only on petrol, but the test on diesel was not conducted since the diesel pump was not functioning from 27.07.2008 and no sample could be drawn. The petitioner also states that during the month of July 2008, there was short supply of diesel and due to the agitation of the public, the outlet was also being closed at 7 p.m. The said SGS without considering the explanation has prepared a test report conducted on 30.07.2008. As per the report of SGS, the diesel turned pink, a show cause notice was pasted on the petrol bunk. It is contended that if the inspection was made at 2.30 p.m. there was no need to paste the notice at 7.30 p.m. The allegations made therein are denied by the petitioner by replying to the show -cause notice through the reply dated 01.08.2008. The further correspondence in that regard are referred to in the petition. The petitioner further contends that one Sri B.R. Ravindranath, a dealer of M/s. Indian Oil Corporation had filed W.P. No. 4637/2007 seeking a declaration that the Marketing Discipline Guidelines -2005 ('MDG -2005' for short) introducing marker system as unconstitutional, illegal, null and void. The said writ petition was disposed of recording the submission of the learned counsel representing the Oil Company that the impugned notification is kept in abeyance until further orders. Hence, it is contended that the marker test alleged to have been carried out by SGS on the petitioner's retail outlet on 30.07.2008 is unauthorized and not sustainable.

(2.) INSOFAR as the proceedings held against the petitioner, the contents of the notice dated 27.08.2008 issued is disputed. The petitioner is also stated to have approached this Court in W.P. No. 11813/2008 when suspension of supply was made. Despite the same, the termination letter dated 08.11.2008 is passed and therefore the unilateral decision taken by the respondents is assailed by the petitioner.

(3.) INSOFAR as the test that was conducted, it is pointed out that though letters were addressed, the petitioner put forth one or the other reason but did not turn up to witness the tests and a committee was constituted to witness the testing of sample. The test conducted on 04.09.2008 showed the diesel turning pink which proved that it was adulterated with kerosene. Suppressing all these aspects, the petitioner had filed W.P. No. 11813/2008 and there being no restraint, the matter had been proceeded further. The said writ petition was however dismissed as infructuous. In that view, the respondents have sought to sustain their action. The respondents also contend that the petitioner has received back the amount and the outlet has also been discontinued and as such, the question of restoring the same in any event would not arise. The respondents therefore seek dismissal of the writ petition.