AGRAWAL MOTORS Vs. UNION OF INDIA

JUDGEMENT

(1.) BY this writ petition preferred under Articles 226 and 227 of the Constitution of India the petitioner has prayed for calling for records from the custody of respondent Nos. 2 and 3 and upon perusal of the same to issue a writ of certiorari for quashment of the order contained in Annexure P. 8 and to grant such other relief as may be deemed fit and proper in the facts and circumstances of the case.

(2.) THE facts as have been unfolded are that the petitioner is a dealer of Hindustan Petroleum Corporation having its retail outlet for petrol and diesel at Baldeobagh, Jabalpur. The petrol pump has been in existence since 1957 and no complaint of any kind has ever been launched against it from its inception. It is set forth in the petition referred to as 'the Act') to provide in the interest of general public for control of production, supply and distribution of, and trade and commerce in certain commodities. Section 3 of the Act empowers Central Government to control production supply, distribution etc. of essential commodities by making orders in respect of the matters enumerated therein. The Central Government in exercise of the powers conferred on it by Section 3 of the Act has framed the Motor Spirit and High Speed Diesel (Regulation of Supply and Distribution and Prevention of Malpractices) Order, 1998 (hereinafter referred to as the '1998 order' ). The said order defines "adulteration", "dealer", "high speed diesel", "malpractice", "motor spirit", "oil company", and "pilferage". The Clauses 4 and 5 of the 1998 Order deal with power of search and seizure and sampling of product. According to the petitioner Clause 3 of the 1998 order provides that the Food Inspector shall put the seal over the underground tank inlet after diesel/petrol is unloaded and the said seal can be broken by him alone at the time of unloading of the next tanker. It is set forth in the writ petition that on 17-10-2000 a team of eight persons arrived at the petitioner's pump and obtained samples of diesel and petrol and at the same time carried out inspection. During the inspection the team found that the density check of petrol and diesel was found well within the variance limits; the delivery measurement of the products from both the petrol and the diesel pumps was in order; the seals of the various State Government Departments, namely, Food and Civil Supply and the Weight and Measurement Department were found intact; and the pump as well as the tank was found sealed and the physical and book stocks the various registers were also found in order and within the variance limits. It is put forth that the density is the only test which is carried out at the time of unloading of the tanker in the presence of the dealer and the government officials and if the diesel and petrol are found deficient in any other manner, the dealer cannot be held responsible for the same. The Residual Octane Number (hereinafter referred to as 'the RON') test is carried out at the laboratory. It is pleaded that there is no provision for conducting such test at the time of unloading of the tanker at the dealer's place or even at the Depot of the Corporation. According to the writ petitioner if petrol is found deficient in RON test the same could be due to various reasons for which the petitioner cannot be held responsible. It is alleged that in the instant case the sample bottles were neither dried nor cleaned as envisaged in the 1998 Order and no copy of 'panchnama' was given to the petitioner even though asked for. It is urged that the composition of search party was not of the nature as specified in Clause 4 of the 1998 Order. There was no Gazetted Officer of the Central Government or State Government; no Police Officer not below the rank of Deputy Superintendent of Police duly authorised by general or special order by the Central or the State Government : no officer of the concerned Oil Company i. e. Hindustan Petroleum Corporation not below the rank of Sales Officer and, therefore, the search and seizure conducted by the search party is totally illegal. It is the further case of the petitioner that six samples of one litre each of the Motor Spirit (Petrol) were not taken but the six samples were taken in bottles which contain 750 ml. and such samples cannot form the basis of any validity test and no sanctity can be attached to such a test. It is put forth in the petition that in case of deficiency in the RON test the petitioner cannot be held liable. To continue the chronology of each to after the seizure was effected on 17-10-2000 the petitioner received a letter dated 9-11-2000, Annexure P. 6, from Chief Regional Manager Retail indicating that sample of ULP had failed in RON (Octane Rating) test by showing a result of 85 against the specification of 87. An explanation was called for from the petitioner in the said letter and in pursuance there of the petitioner filed his show cause on 13-11-2000. It is alleged in the writ petition that respondent No. 3 without considering the explanation of the petitioner in an arbitrary manner suspended the supply of all petroleum products for a period of 45 days effective from 15-12-2000. The said communication has been brought on record as Annexure P-8. On receipt of the same the petitioner submitted a representation on 16-12-2000 requesting the Corporation to get the samples re-tested and till such time to keep the order contained in Annexure P-8 in abeyance. It has been further set forth that there was abrupt stoppage of supply of all petroleum products w. e. f. 17-1-2001 and the petitioner was informed that the same was done due failure report obtained after the second sample was tested in which the Octane Rating has been certified to be 86. Questioning the validity of stoppage of supply of petroleum products it is contended in the petition that the petitioner cannot be held responsible for any deficiency in RON test when the Corporation itself cannot establish as to what was the quality of the petrol at the time of delivery through tanker. It is also put forth that all other tests statutorily required having been found correct, it excludes the possibility of pilferage or adulteration and hence the petitioner could not have been held liable. It is averred that as composition of search party was not in accordance with the requirement as contemplated in Clause 4 of the 1998 Order and the sample was not taken in accordance with the mandate of Clause 5 of such order the whole action of the respondents is vitiated and therefore, the order contained in Annexure P-8 deserves to be quashed.

(3.) A preliminary objection has been filed by the answering respondents contending that the disputes which are raised by the petitioner are covered by the arbitration clause and, therefore, are not be adjudicated in the present writ petition.