TATIA, J. - (1.) HEARD learned counsel for the parties.
(2.) THE petitioner is aggrieved against the action of the respondents no. 2 and 3, who have stopped supply of petroleum product to the petitioner without passing any order on the ground that the respondents found that the petitioner was involved in selling adulterated petroleum product. Brief facts of the case are that petitioner is a dealer of the Indian Oil Corporation Ltd. , since 2005. On 28-2-2007, the petitioner received petrol and diesel through tanker, which was brought to the place of the petitioner by the transporter - respondent no-4- As per the procedure, the petitioner was supposed to take two samples before allowing un-loading transporter's tanker to his tank and he was required to keep it in sealed container. One sample was to be retained by the dealer and another is to be given to the transporter. This procedure has been prescribed so that in case, there is allegation of adulteration on the dealer, then the dealer can present the sample for testing so that it can be found out that the adulteration in the petroleum product was before the goods reached to the hands of the petitioner and adulteration might have been done by the transporter. This sample is called TT retention sample. According to petitioner, he took two samples and kept one sample with him and offered another sample to the transporter, but the transporter did not accept that sample, therefore, the dealer himself kept the another sample with himself. On 12th March, 2007, a test was conducted by the officers of the respondents no. 2 and 3 - company in the premises of the petitioner and at that time, they found that the petroleum product was adulterated. This they found by Marker Test. The officials then collected the corresponding TT samples also from the petitioner and sent these two samples; one TT retention sample and another sample taken by the officials of the IOC on 12th March, 2007 to the authorized lab, which is AM (Lab), Jodhpur, which according to petitioner is situated at Salawas in Jodhpur City. The petitioner's supply of the petroleum product was stopped from 12th March, 2007 itself and an endorsement was made in the sale register of the petitioner, copy of which has been placed on record as Annex. 6a. Both above samples were returned by the AM Lab, Jodhpur vide communication dated 19th March, 2007 on the ground that the wooden box of the TT retention and another samples are not properly sealed and, in fact, sample is not sealed as per the MDG -2005. The contention of the petitioner is that the petitioner followed the procedure and retained TT retention sample and handed over it for testing in good condition. The same sample was sent to the lab for testing, but it was sent after manipulation and breaking the seal of the sample by respondents' persons. According to petitioner in case the TT retention sample is found adulterated then action can be taken only against the transporter and not against the dealer. Learned counsel for the petitioner pointed out that for this purpose specific directions have been issued by the respondent company itself and as per sub-clause (a) of clause 7 of the instructions dated 30th March, 2007 it is clear that the action against the dealer can be taken only when RO sample fails and TT retention samples passes because of plain and simple reason that TT retention sample represents the condition of petroleum product as it was in the transporter's tanker and in case, transporter sent the adulterated goods to the dealer then no action can be taken against the dealer. Learned counsel for the petitioner submitted that in the present case, the samples were not tested despite the fact that sample was handed over to the officers of the respondent company as required by sub-clause (2) of the guideline dated 30th March, 2007. It is also submitted that sample of even transporter has not been tested yet. The petitioner's further contention is that till today no order has been passed by any authority of stopping the supply of petroleum product to the petitioner's retail outlet. So is also the position that no opportunity of hearing was granted to the petitioner before taking a decision to stop the supply of the petroleum product to the petitioner's retail outlet. Learned counsel for the petitioner relied upon the judgment of the Hon'ble Supreme Court delivered in the case of Harbanslal Sahnia & Anr. Vs. Indian Oil Corporation Ltd. , & Ors reported in (2003) 2 SCC 107 wherein according learned counsel for the petitioner in identical facts and circumstances of the case when the dealership was cancelled without hearing the other party, the Hon'ble Supreme Court after considering the clause of arbitration held that the High Court has committed error by not granting relief to the petitioner. Learned counsel for the respondent vehemently submitted that the writ petition of the petitioner is not maintainable in view of the fact that it is a contractual matter and further there is an arbitration clause and the petitioner could have availed the effective, alternative remedy by raising a dispute and getting the matter adjudicated through arbitrator. It is also submitted that the petitioner could have obtained the interim relief even under the Arbitration and Conciliation Act, 1996. Learned counsel for the respondent relied upon the judgment delivered in SBCWP No. 953/2007 ( M/s. Rathore Filling Station Vs. Union of India & Ors, decided on 12-4-2007) wherein this Court refused to interfere in writ jurisdiction in almost identical circumstances.
(3.) ON merits, learned counsel for the respondent vehemently submitted that the petroleum product in the tanker of petitioner was found adulterated by a Marker Test, which was conducted in the presence of the petitioner by the officers of the respondent company. It is also submitted that petitioner did not keep the sample in good condition and his sample was returned by the lab on the ground that sample's seal was not properly affixed, rather to say that "not sealed sample", which could have been tested by the lab. Learned counsel for the respondent also submitted that in that situation it was the duty of the respondent company to stop the supply of the petroleum product to the petitioner forthwith so that he may not sell the adulterated goods to the public. Learned counsel for the respondent also submitted that petitioner himself was responsible for the adulteration, which is proved from the marker test. The respondents in their reply gave complete procedure, which is adopted for supply of the petroleum product, its taking sample and further under what circumstances, the supply of petroleum product can be stopped. I considered the submissions of learned counsel for the parties and perused the facts of the case as well as guideline dated 30th March, 2007 and the judgments relied upon by learned counsel for both the parties. In the peculiar facts and situation, in SBCWP No. 953/2007, decided on 12th April, 2007, this Court observed that existence of alternative remedy is not absolute bar against the maintainability of the writ petition and before the writ petition no. 953/2007 was decided, the petitioner approached this Court by filing a writ petition wherein the writ petition was disposed of after taking note of the fact that petitioner has his own explanation, while the respondents have their own story to justify their action. Therefore, this Court on earlier occasion, declined to entertain the writ petition of the petitioner M/s. Rathore Filling Station and directed the non-petitioner to hear the petitioner and decide the matter within two weeks from the date of order by speaking order. In that situation, the petitioner was given opportunity of hearing and, thereafter, the order was passed by the oil supply company against the petitioner. In that situation, when order was passed against M/s. Rathore Filling Station, then M/s. Rathore Filling Station filed SBCWP No. 953/2007 and that writ petition was dismissed on the ground of availability of alternative remedy of arbitration. The facts of the present case are entirely different. In this case, the petitioner's contention is not that there is any adverse report against the petitioner except one marker test report. The marker test report only proves that goods lying in the tanker of the petitioner were adulterated. That can be because of the reason that petitioner himself got adulterated petroleum product from the transporter and the transporter might have adulterated the petroleum product. To safeguard the dealers from such situation of making adulteration by the transporters, the specific procedure has been prescribed by the respondent company itself by issuing guidelines dated 30th March, 2007, which provides complete procedure for un-loading the petroleum product form the tanker to the tank of the retail outlet. The relevant portion of the conditions are as under: - " 1. The oil company officer/authorized official on reaching the retail outlet will first draw nozzle samples from dispensing units connected to each storage tank at the retail outlet in 2 containers in respect of each storage tank. 1 sample container will be sealed and jointly signed by the official and the dealer/dealer representative present at the retail outlet and taken in to safe custody by the official and the 2nd sample container will be used to carry out the Marker test at the retail outlet. " ;