SUJIT NARAYAN PRASAD,J. - (1.) The matter has been heard through video conferencing with the consent of learned counsel for the parties. They have no complaint about any audio and visual quality. L.P.A. No.569 of 2018 The instant appeal is under Clause-10 of the Letters Patent of the Patna High Court directed against the order/judgment dated 14.06.2018 passed by the learned Single Judge of this Court in W.P.(C) No.6378 of 2014, by which, the writ petition has been allowed by quashing the order dated 31.07.2017, whereby and whereunder, the writ petitioner has been restrained to deal with the customers and suppliers of the respondent as also restrained to deal with any of the products of the respondent and neither the writ petitioner will be able to claim itself to be dealer of the respondent Company under any circumstances whatsoever.
(2.) The brief facts of the case which required to be enumerated read hereunder as:- The writ petitioner is a dealer, duly been appointed by the Bharat Petroleum Corporation Ltd, in short "BPCL", involved in purchasing, receiving, storing and selling of Motor Spirit and High Speed Diesel Oil (MS & HSD), in the name and style of "Sharma Filling Centre" situated at NH-6, Anishwarpur, Baharagora, East Singbhum, Jharkhand, since the year 2005. The writ petitioner has entered into an agreement for carrying out the business on 24.05.2005 for a period of 15 years operative till 23.05.2020 and thereafter, has started supply of the aforesaid products to the Company. The writ petitioner has carried out supply of "MS & HSD" without any complaint from any quarter. The writ petitioner has pleaded that having found difficulty with regard to giving excess delivery by Dispensing Unit being DU No.BY L&T 9299, a request was made to the Inspector, Weight and Measures Department, Ghatsila, East Singhbhum vide its letter dated 23.02.2013 as also deposited the requisite fee of Rs.750/- to conduct re-verification of the said DU No.BY L&T 9299 which was giving excess delivery. The writ petitioner was informed by the Weights and Measures Department, Ghatsila that for re-verification and stamping verification, fee is required to be deposited and only after due repair of the machinery and after re-verification and stamping of the same, the supply of oil should be started. The Quality and Control Cell (QCC) of the respondent Company has conducted a surprise inspection on 26.02.2013, wherein, it has been found that sealing wire on metering unit of one DU No.BY L&T 9299 was found broken and MS & High Speed Diesel was dry at the time of the inspection. A report was prepared mentioning therein that the sale from the said DU was suspended till further advice from the territory. The respondent's Company, thereafter, has issued a show cause on 11.04.2013 to explain as to why action should not be taken against the writ petitioner including termination of the aforesaid agreement for commission of alleged irregularities to the effect:- (i) In DU No.BY L&T 9299, the sealing wire on metering unit is found broken and; (ii) MS & Hi-Speed Diesel were dry at the time of inspection. The writ petitioner, on receipt of the aforesaid notice dated 11.04.2013, replied vide letter dated 25.04.2013 explaining therein by denying the allegation as also mentioning in the aforesaid reply that on 23rd February, 2013, a request was made to the Weights and Measures Inspector to re-verify the respective DU No.BY L&T 9299 with fee receipt no.726085 and the same has been verified on 28.02.2013 by the Weights and Measures Inspector and to that effect due certificate was issued. Since 24.02.2013, the sale from respective DU was suspended as advised by Weights and Measures Inspector. Further, it has been referred therein that sale of Hi-Speed Diesel is almost nil in most of the RO due to huge gap in pricing with HSD. As far as MS is concerned, the potential is about 3 KL to 4 KL a month with an assurance that the sale as per the required quantity will be done in future. Further, query has been made by the respondent with respect to irregularities in point no.4(i), which has again been replied by the writ petitioner vide letter dated 25.04.2013 annexing therein the letter dated 23.02.2013 addressed to the Weights and Measures Inspector for re-verification and further clarified the said point no.4(i) by referring therein that "if in Du No. BY L&T 9299, sealing wire was found broken, it might be purely due to heavy rust and force used by the Inspection Officer". The DU was regularly been checked up but not its seal and wires. On 23.02.2013, during routine delivery check, it has been found erratic delivery from above said machine and thereafter, it has immediately been informed to the concerned Officer of the respondent-BPCL and Weights and Measures Inspector for re-verification of the said machine. The respondent Company after receipt of the aforesaid letter from the writ petitioner has again made correspondence to the writ petitioner on 07.05.2013 asking the writ petitioner to explain as to why the letter addressed to the Weights and Measures Department, Ghatsila was not produced before the Inspection Officials on 26.02.2013. Apart from that, another letter was issued by the respondent Company on 07.05.2013 addressed to the Inspector, Weights & Measures Department, Ghatsila to intimate him about the genuineness of the letter dated 23.02.2013 as also about the observations during the visit of the inspected site. The aforesaid communication has been answered by the writ petitioner clarifying therein that the authorized DSW Mrs. Lakshmi Rana who was present at the petitioner's premises was not aware of the said letter dated 23.02.2013 addressed to the Inspector, Weights & Measures Department, Ghatsila and therefore, the said letter could not be produced during the course of such inspection. The respondent Company has again made correspondence to the Weights and Measures Department, Ghatsila, Jharkhand on 05.08.2013 seeking confirmation as to whether the facts narrated by the writ petitioner in letter dated 25.04.2013 was good and found the same in order. The Inspector, Weights and Measures Department, Ghatsila, on receipt of the aforesaid letter, has explained vide letter dated 16.08.2013 the fact about re-verification and also mentioned that the metering unit is very old and outdated and needs to be replaced. It is the case of the writ petitioner that even in spite of the letter of the Inspector, Weights and Measures, Department, Ghatsila having been received, the order of suspension of supply from the concerned DU has not been lifted. The concerned Company having not been satisfied with the reply, has issued the order dated 31.07.2017 terminating the contract and restraining the supply of MS & HSD to the petitioner's unit.
(3.) The writ petitioner initially has approached to this Court seeking relief to the effect for a direction upon the respondent to start the supply of the Motor Spirit and High Speed Diesel Oil (MS & HSD)) in terms of the agreement executed on 24.05.2005 but during the pendency of the writ petition since the decision has been taken to terminate the contract vide order dated 31.07.2017, as such, the order of termination of the contract has been assailed by filing the interlocutory application being I.A.No.7104 of 2017 seeking leave of this Court to amend the prayer made in the writ petition by inserting the prayer for quashing of the order dated 31.07.2017 which has been allowed by the learned Single Judge of this Court while disposing of the aforesaid interlocutory application being I.A.No.7104 of 2017 vide order dated 26.02.2018.;