- (1.) The petitioner-a retail outlet dealer of the products of Bharat Petroleum Chemicals Limited (short as B.P.C.L.) has challenged an order dated 24.4.2009 passed by respondent No. 4 whereby the dealership of the petitioner's company has been terminated. The petitioner-company entered into a dealership agreement with B.P.C.L. for retail sale of petroleum products, supplied at Civil Lines, Bilaspur, District Rampur. The said outlet was inspected by one Mr. A.K. Batra of the mobile lab of Indian Oil Corporation on 3.5.2008. A "Marker Test" was carried out. As the said H.S.D./Diesel sample of tank No. 2 failed in the marker test, the supply of the retail outlet was suspended on the same day. On the basis of inspection dated 3.5.2008, respondent No. 4 issued a show-cause dated 4.8.2008 calling for an explanation from the petitioner. The petitioner submitted his reply on 17.9.2008 denying the allegations. The respondent No. 4 terminated the dealership agreement on 24.4.2009, giving rise to the present petition.
(2.) Sri H.R. Mishra, learned Senior Counsel for the petitioner has canvassed the following propositions in support of his contention: (i) Marker test is not a foolproof test and therefore, no reliance can be placed solely on the said test to adjudicate the issue of adulteration; (ii) As no retesting was done in terms of sub clause D of Clause 2.5 of the Marketing Discipline Guidelines, 2005, hence the agreement could not be cancelled only on the ground of failure in marker test; (iii) Clause 2.5 K of the MDG guidelines were violated inasmuch as, where a sample was found to be off spec, subsequent sample should have been drawn from the same retail outlet within three months from the date of test report of the earlier sample; (iv) As the report was not furnished within a specified period in terms of clause (e) of 2.4 of M.D.G. guidelines, hence no reliance could have been placed on the same for cancelling the agreement; (v) A copy of the clinical test report was not furnished to the petitioner, hence the impugned order stood vitiated.
(3.) The case of respondents/B.P.C.L. is that in the inspection so conducted at the retail outlet on 3.5.2008 by I.O.C.L. mobile lab, in the presence of the representative of the petitioner, the H.S.D., sample on testing, failed in the "marker test". The R.O. (Retail outlet), H.S.D., sample and T/L (Tank and Lorry) samples of last two supplies viz. 23.4.2008 and 28.4.2008 were tested at Mathura lab on 16.5.2008 in the presence of the petitioner's representative and transporter of the tank lorries and again the H.S.D., R.O., sample failed in marker test, whereas the tank lorry sample of the last two loads passed the "marker test". On the basis of the aforesaid report, a show-cause dated 4.8.2008 was issued to the petitioner and in response thereto, the petitioner submitted his reply and thereafter an order dated 24.4.2009 terminating the dealership agreement of the petitioner has been passed. It is further submitted that the marker test has been incorporated by MOP and NG in the Motor Spirit, H.S.D. Control order 2005 vide MS/HSD amendment order 2007 dated 12.1.2007 and to rule out a possibility of any errors and omissions, a 3 tier sample process has been adopted, wherein the R.O., sample of the corresponding T.L. retention sample of last two receipts and corresponding S.L., samples are tested to find out the stage at which marker doped kerosene has entered into the product so that necessary action may be taken against the erring dealer as per the current guidelines. It is further submitted that the marker test has now been discontinued with effect from 1.1.2009.;