Gujarat High Court
Jenamben Firoz Jhokiya vs Bharat Petroleum Corporation Limited on 15 February, 2024
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/15934/2023 ORDER DATED: 15/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15934 of 2023
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JENAMBEN FIROZ JHOKIYA
Versus
BHARAT PETROLEUM CORPORATION LIMITED
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Appearance:
MR BM MANGUKIYA(437) for the Petitioner(s) No. 1
MS BELA A PRAJAPATI(1946) for the Petitioner(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 3
MR AJAY R MEHTA(453) for the Respondent(s) No. 1,2
MR JAYKUMAR R BARAIYA(10757) for the Respondent(s) No. 4
MR. MAULIK M SONI(7249) for the Respondent(s) No. 4
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 15/02/2024
ORAL ORDER
1. The writ-applicant herein has invoked Article 226 of the Constitution of India challenging the order passed by the respondent No.3 dated 28.8.2023 Annexure-Z/1 pages 224 to 231 under the Marketing Discipline Guidelines and Dispensing Pump and Selling License (for short "DPSL) dated 28.8.2012 Annexure-R/1 pages 266 to 278 and has prayed for the following reliefs:-
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NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined "(A) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction and to quash and set aside the impugned order passed by the respondent no.3 Appellate Authority, dated August 28, 2023 Annexure-Z-1 ;
(B) Pending admission and final disposal of the present petition, be pleased to stay the implementation, execution and operation of the impugned order passed by the respondent no.3 - Appellate Authority, dated August 28, 2023
- Annexure-Z-1 ;
(C) Be pleased to pass such other and further orders as may be deemed fit and proper."
2. Brief facts leading to the filing of the present writ- application read thus :-
2.1 The respondent issued notice for allotment of the petroleum outlet at Rajula. The writ-applicant submitted the necessary forms and in the selection process came to be selected. After going through the requisite procedure, an agreement came to be executed by and between the writ-
applicant and the respondents on 28.8.2012 which was Page 2 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024 NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined considered to be Dispensing Pump Selling License DPSL on various conditions. The said Agreement is duly produced at Annexure-A to the petition.
2.2 After allotment, the respondent issued Marketing Discipline Guidelines (for short 'MDG') which came into effect from 08.1.2013. The said guidelines would be applicable to the writ-applicant. The said guidelines is duly produced at Annexure-B. 2.3 On inspection having been carried out at the premises of the writ-applicant on 27.1.2022 and it was recorded certain deficiencies came to be recorded vide even dated communication. One of the irregularity found by the said so called inspection team and MPD/ATG was switched to offline/ manual mode without authorization from the respondent. The same being violative of MDG as per clause 5.1.16. The said communication dated 27.1.2022 is duly produced at Annexure- C. The writ-applicant answered to the said communication by Page 3 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024 NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined reply dated 2.2.2022. The said reply is duly produced at Annexure-D. 2.4 On 31.3.2022, the instructions of the MPD was removed by the respondents and the same was stated to have been tested at the lab of the manufacturer of the said unit and that there was normal functioning of all the components of the said unit.
2.5 The writ-applicant addressed a communication on 07.3.2022 requesting the respondent to take necessary steps to permit the writ-applicant to open the retail outlet of the petroleum product. Another email was sent reiterating the said request by dated 11.3.2022.
2.6 The writ-applicant continuously addressed communications at the interval of five days or more reiterating the request by communications dated 16.03.2022, 22.03.2022, 04.04.2022, 06.04.2022, 07.04.2022, 08.04.2022, 09.04.2022, Page 4 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024 NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined 11.04.2022, 12.04.2022. The same are duly produced at Annexure-G Colly.
2.7 A show cause notice came to be issued to the writ- applicant on 20.6.2022 alongwith the lab report. It is the case of the writ-applicant that the lab report is confirming that the components were found to be working normally. 2.8 The writ-applicant being a lady and was not properly advised, the writ-applicant replied to the said show cause notice and pointed out that the variations between MPD and ATG was on account of the malfunctioning of the instrument and the writ-applicant has not committed any error. 2.9 The writ-applicant continued making representations to the respondents on 19.09.2022. The writ-applicant on 19.09.2022 received a communication for the personal hearing on 03.10.2022 which is duly produced at Annexure K and Annexure L respectively.
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NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined 2.10 The writ-applicant addressed another communications/representations dated 22.11.2022 28.11.2022, 03.12.2022, 10.12.2022, 17.12.2022, 24.12.2022 and 31.12.2022 duly produced at Annexure M Colly. 2.11 The writ-applicant herein preferred the Special Civil Application No.14731 of 2022 challenging the show cause notice issued to the writ-applicant on 27.1.2022, 20.06.2022 which came to be withdrawn by the writ-applicant in view of the order passed on 1.10.2022 with a view to approach the appropriate authority as per the Marketing Discipline Guidelines, 2012. The said order dated 1.10.2022 is duly produced at page-154 Annexure-O. 2.12 The writ-applicant preferred another writ-application being Special Civil Application No.911 of 2023 seeking direction qua the respondent authorities to pass orders on merit pursuant to the show cause notice issued to the writ- applicant on 20.6.2022 and reply given thereto dated Page 6 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024 NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined 29.7.2022.
2.13 On 12.1.2023, order terminating the dealership agreement came to be passed by the competent authority which is duly produced at page-156 Annexure-Q. In view of the aforesaid order having been passed, the said writ- application came to be disposed of as having become infructuous Annexture-T. 2.14 The writ-applicant preferred an Appeal challenging the said order of termination of the dealership being Appeal dated 23.2.2023 before the Appellate Authority which came to be dismissed/rejected by the impugned order dated 28.8.2023. Resultantly the writ-applicant herein being aggrieved and dissatisfied by the said order rejecting the Appeal by the writ- applicant whereby the writ-applicant's agreement has been terminated, the writ-applicant herein has preferred present writ-application with reliefs as prayed above. Page 7 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024
NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined
3. Heard Mr. B. M. Mangukiya, the learned advocate appearing for the writ-applicant, Mr. Ajay Mehta, the learned advocate appearing for the respondents No.1 and 2 and Mr. Jaykumar R. Baraiya, the learned advocate appearing for the respondent No.4.
4. Mr. B. M. Mangukiya, the learned advocate appearing for the writ-applicant has submitted that the writ-applicant has preferred the aforestated writ petition, inter-alia, challenging the order passed by the respondent authorities of terminating the petroleum outlet of the writ-applicant on three main grounds. The premise of the writ-applicant was visited by the officers of the respondents on January 27, 2022. The inspection memo as issued to the writ-applicant, which is placed on record at page 104 to the petition. As per the said document, the suspension of the supply was affected on the ground that the MPD and ATG were switched off and petrol pump as kept dry on such dates as mentioned in the said communication. Page 8 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024
NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined 4.1 It was submitted that the main issue for supply was unauthorize change of mode from automatic to manual of ATG and MPD. It is the case of the respondents that on January 27, 2022, the physical supply of HSD was 1428 liters, whereas the supply of MS was 968 liters. As per the data available from the electronic gadget - MPD the supply was shown as 2823 liters of HSD and 1362 liters of MS. The report of the supply on January 27, 2022 is placed at page 425 at Annexue-P-2 with the rejoinder affidavit. The totalizer slip is placed at page 424 and also confirmed the same. Therefore, as per the record of the respondents, there was an admitted variation between physical stock taken by the Officer of the, respondents on January 27, 2022. The electronic gadgets failed to disclose correct stock as available in the tank. There is no explanation as to how this difference of stock stand reconciled and the respondents have remained silent while recording the termination order and confirmed in Appeal by the appellate authority. Therefore, there is an admitted fact that the electronic gadgets were mal-functioning. Page 9 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024
NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined 4.2 It was submitted that eEvery retaler of the petroleum company of a public sector has to. function as per the guidelines issued by the Government of India. As per the guidelines, the daily stock register is to be maintained by every retailer. The daily stock register has to be counter-signed by the Officer who pays visit to the retailers. In the present case, the daily stock register, popularly known as DSR is properly maintained and it is counter-signed on every visit by the Officers of the respondents and the physical stocks were as per the record available in DSR. The variation would be sale carried out after the stock register in the DSR has to be reflected once in a day and that is always 09.00 a.m. everyday. The stocks which were reflected in the DSR on January 27, 2022, match with the stock and sale when the suspension was ordered on January 27, 2022. 4.3 It was submitted that the writ-applicant, there fore, has established that the physical stock was in accordance with the stocks mentioned in the DSR and stock physically verified by Page 10 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024 NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined the Inspecting Officer on January 27, 2022. The data obtained on January 27, 2022 of electronic data and totalizer of ATG did not confirm the physical stock. If those electronic gadgets, namely ATG (Automatic Tank Gurage) and the data of totalizer of MPD did not match, which clearly established the fact that these electronic gadgets were not functioning properly. 4.4 It was submitted that he writ-applicant would like to point out that the respondents claim that the premise of the writ-applicant was again inspected and visited by the Officer of the respondents after January 27, 2022, One more team of the respondents stated to have visited the premise of the writ- applicant on February 22, 2022. The joint inspection report was prepared on February 22, 2022. Said joint inspection report is placed at Annexure-P-5 at page 523. In the said report, it was never stated that except removal of the spare- parts from the MPD, no further observation was made. 4.5 It was submitted that it is the case of the Page 11 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024 NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined respondents that the premise of the writ-applicant was again checked on March 26, 2022, and for the first time the seals were applied on the tanks and MPD bearing No. 12EB0345B. It is pertinent to note that on the day on which the inspection of the premise of the writ-applicant was reinspected on March 26, 2023, the print of the totalizer was not taken out. The allegation against the writ-applicant is that even after suspension of the supply on January 27, 2022, the writ- applicant allegedly obtained supply from other source and sold the petroleum pro duct, namely HSD of 23 800 liters and 19191 liters of MS. These quantities of the petroleum products, namely HSD and MS alleged to have been sold during the period commencing from January 28, 2022 till March 26, 2022. From January 22,2022, the Officer of the respondent inspected the premise of the writ-applicant on February 22, 2022, March 26, 2022 and May 19, 2022. All these inspections have taken place prior to issuance of the show cause notice dated June 20, 2022. It is pertinent to note that on January 27, 2022 the case of the respondent is that there is excess sale Page 12 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024 NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined of 5 KL.On May 19, 2022, the respondents claim that the writ- applicant obtained further supply from other sources and sold 23888 liters of HSD and 19191 liters of MS. In the show cause notice, which is placed on record which is at page 123, the respondent came out with the case that as per the inventory dated January 19, 2022, the volume of HSD was 1903.4 liters, whereas as per the inventory dated January 19, 2022, HSD volume was 3388 liters, and as per the inventory dated January 22, 2022, the HSD was of 1934 liters and as per the inventory dated January 20, 2022, said volume was 2581 liters and inventory on January 26,2022, the HSD was of 1904 liters, and on the same day it was 2856 liters. and on Janaury 26, 2022 the volume was 1497 liters and again 2795 liters. These volumes have been mentioned as per the records available from the electronic gadgets. If the volume on 19.01.2022 at 12.00 hours was 1903 liters and inventory on the same day at 01.30 p.m. was 3388 liters, meaning thereby the writ-applicant has obtained additional supply of approximately 2000 liters within a span of 30 hours. Again on January 22, 2022, the Page 13 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024 NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined volume of HSD was 1934 liters at 07.28 hours and at 08.28 hours it was 2518 liters. Therefore, the writ-applicant allegedly has obtained supply of 585 liters. Again, according to the respondent, the HSD volume at 18.15 hours on January 21, 2022, it was 1904 liters and at 19.20 hours the volume was 2586 liters. Therefore, according to the respondents, the writ- applicant has obtained additional supply of 952 liters. Again, the supply of HSD at 16.59 hours on January 26, 2022, it was 1497.2 liters and at 17.28 hours the volume was 2775.9 liters. There fore, the writ-applicant allegedly obtained additional supply of 1278.7 liters. The incident of additional supply on January 19, 2022 has occurred allegedly within 13 minutes and in case of January 20, 2022, the occurrence is within 60 minutes; whereas the incident the additional supply on January 21, 2022 has occurred within 30 minutes, and on January 16,2022, the incident of alleged acquiring of additional supply has occurred within a span of 29 minutes. Therefore, as per the respondents, the writ-applicant has Jadui Chirag where the writ-applicant is getting supply of odd number of the supply Page 14 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024 NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined from other resources. This is a clear case of jumping which the respondents themselves admit and so as to suppress that jumping, the respondents deliberately did not take out the print of the electronic gadgets installed in the premise of the writ-applicant for measuring of the petroleum product stored in the premise of the writ-applicant. The respondents took print on January 27, 2022. However, no print has been taken out on February 20,2022, March 26, 2022 and May 19, 2022. In joint inspection report, variation of the quantity of the petroleum product stored or sold have not been reflected. 4.6 It was submitted that this allegation comes out for the first time in the show cause notice, and it is not substantiated from any materials whatsoever. To substantiate the variation of the supply, the respondents have miserably failed to produce any material worth the name and only relied upon elactronic gadgets which, according to them, did not mention correct physical stock and the stock mentioned in the electronic gadgets. In the joint inspection on January 27, 2022, the Page 15 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024 NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined respondents have mentioned that there is variation of 5 KL i.e. 5000 liters. However, on what basis it has been mentioned is absolutely silent. Therefore, they have come out with different figures as mentioned hereinabove. Therefore, this is a clear case of mal-functioning of the electronic gadgets. 4.7 It was submitted that the electronic gadgets installed at the premise of the writ-applicant are of GILBARCO. Said company is supplying the electronic gadgets with all public sector companies. The writ-applicant could lay her hands and some of the reports of mal-functioning of the electronic gadgets installed at the premise of the retailers. The reports of mal-functioning of jumping of totalizer bearing No.33689 in relation to Krupa Petroleum, Navapara; report bearing No.300954 in case of Nikul Petroleum, Nanakpurra Kachchh; report bearing No.300953 in case of Jadeja Petroleum; report bearing no,42990 in case of Raghuvanshi Petroleum; report bearing no. 144995 in case of N.K. Petroleum; report bearing no.144787 in case of N.K. Petroleum; report bearing no.139888 Page 16 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024 NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined in case of Arvindkumar & Company; report bearing no. 1616461 in case of Bharatsinh Rajguru; report bearing no.300954 in case of Nikul Petroleum; report bearing no.300676 in case of Girish Patel; report bearing no.308850 in case of Arvindkumar & Company; report bearing no.30703 in case of Balai Petroleum; report bearing no.137436 in case of Sadhima Petroleum; report bearing no.300267 in case of Samruddhi Petroleum clearly suggest that the electronic gadgets installed at the premise of the said retailers were mal- functioning either on account of the electrical problem or interference of the censor or malware of software or firm where GILBARCO. The writ-applicant, therefore, submits that all allegations are being made against a woman for no basis. It is the clear case of mal-functioning of the electronic gadgets. It may also be noted that the writ-applicant has not come out with the case of the non-functioning or mal-functioning of electronic gadgets installed at the premise of the writ- applicant. In each report of the inspecting officers of the respondents, it is admitted that the electronic gadgets were not Page 17 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024 NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined working properly and repairs were required. Therefore, this is a clear case of mal-functioning and no irregularity is committed by the writ-applicant.
5. Mr. Ajay Mehta, the learned advocate appearing for the respondents No.1 and 2 has also filed following written submissions :-
5.1 Mr. Mehta, the learned advocate submitted that the order in original dated 12.01.2023 (Annexure - Q, pages 156 to 163) and the order dated 28.08.2023 (Annexure - Z1, pages 224 to
231) passed by the Appellate Authority have been passed after giving due opportunity of hearing to the writ-applicant herein and considering all facts, evidences (as available), Original Equipment Manufacturer (OEM) report, the investigation committee reviews, and after due application of mind.
5.2 It was submitted that as per the DPSL executed between the parties, for allotment of the Petrol Pump at Rajula, Amreli, Page 18 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024 NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined the writ-applicant was bound by the terms and conditions thereof. For the purpose of the present matter, Clause 12 and 15 (pages 272 and 274) of the DPSL with regard to the conditions of termination assume significance. The same have been reproduced in the Reply.
5.3 It was submitted that on 27.01.2022, during an inspection at the Retail Outlet of the writ-applicant, it was observed that there was positive High Speed Diesel ("HSD") stock variation beyond permissible limits, that the stock was in excess of what was delivered and as compared to what was sold by the writ- applicant. It was also observed that there were other serious irregularities such as dry outs on multiple occasions, Multi Product Dispenser ("MPD") and Automatic Tank Gauge ("ATG") being switched to manual mode without any authorization as well as Driveway Salesman ("DSM") not being in proper uniform, etc. In view of the above, as per Clause 5.1.11 (Annexure-R/2, pages 279 to 347, relevant at pages 311-312) of the MDG, sales and supplies of all products at the retail outlet Page 19 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024 NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined were suspended from 27.01.2022. Thereby, the writ-applicant was restrained from all business dealing from the Retail Outlet. It is submitted that the Respondent also prepared a Retail Outlet Inspection ("ROI") Report dated 27.01.2022 which was countersigned by the writ-applicant's representative. 5.4 It was submitted that on 21.02.2022, two member committee of Respondent - BPCL visited the retail outlet of the writ-applicant. The Committee, after inspecting the Retail Outlet and to verify apprehension raised by writ-applicant regarding meter jumping, advised sealing all the cards of MPD serial number 12EB0346V and to send the same to Original Equipment Manufacturer ("OEM") laboratory for detailed testing. Accordingly, the cards of only one MPD were sealed in the presence of the writ-applicant's representative and sent to the OEM laboratory.
5.5 It was submitted that despite the order of suspension on the Retail Outlet, on 26.03.2022, it was observed that the Page 20 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024 NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined Retail Outlet was functional and selling products to the customers through other MPD available at site in clear violation of the suspension of sales issued by the Respondent - BPCL on 27.01.2022. So as to ensure that the writ-applicant does not engage in any further malpractices all the 3 (three) tanks bearing Nos. 7971780 (MS), 7971744 (HSD 1) and 7971747 (HSD 2) and the 4 (four) nozzles of MPD bearing serial number 12EB0345V were sealed with seals bearing number 7971707, 7971710, 7971727 and 7971725 in the presence of writ-applicant's representative on 26.03.2022. 5.6 It was submitted that the OEM laboratory submitted its report dated 26.04.2022 (Annexure R/3, pages 348 to 358), whereby it was concluded that there were no traces or issues found with the said MPD which could impact the normal functioning of the Dispensing unit. OEM lab in clarification further revealed the fact that the final meter reading of MPD 12EB0346V for nozzle numbers 2 and 3 were 79586 and 31534 respectively, whereas at the time of suspension of sales and Page 21 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024 NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined supplies on 27.01.2022, the meter reading of the said MPD for nozzle numbers 2 and 3 were 66616 and 31371 respectively. Hence, it was observed that unauthorized sales had occurred at the Retail Outlet during the period between 27.01.2022 and 21.02.2022 through MPD bearing number 12EB0346V. OEM lab report also revealed that MPD was switched to standalone mode from automation mode which was off course done without authorization and till now no explanation is provided by writ-applicant for the same.
5.7 It was submitted that on 19.05.2022, another inspection was carried out by a two member committee and the Sales Officer of the answering Respondent in presence of the writ- applicant's representatives, wherein it was observed that the seals affixed on the tanks by the Respondent on 26.03.2023 were broken. It was further observed that though MPD bearing serial number 12EB0345V, sales of 23,888 litres of MS and 19,191 litres of HSD were made since suspension of sales and supplies on 27.01.2022 clearly indicating that the writ- Page 22 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024
NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined applicant had obtained stocks from other than the Respondent and sold the same in violation of the suspension order dated 27.01.2022. Hence, the writ-applicant was further guilty of tampering with sealed tanks which was in further violation of the MDG as well as the DPSL.
5.8 It was in the aforesaid background that the Respondent
- BPCL was constrained to issue a show cause notice dated 20.06.2022 (Annexure - H, pages 118 to 125) seeking explanation from the writ-applicant as to why the DPSL should not be terminated. As the explanations submitted by the writ- applicant with respect to the irregularities/breaches were found to be unsatisfactory, the Respondent - BPCL after due application of mind and considering all the facts, evidences and materials available on record, reports of two separately appointed committees, passed the termination order. It is also submitted that since the writ-applicant through external assistance of hooligans blocked the entrance to the Retail Outlet by creating a 'Wall', the Respondent -BPCL was Page 23 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024 NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined constrained to lodge a police complaint dated 16.02.2023 (Annexure - R/5, pages 365 to 368).
5.9 It was submitted that it is an undisputed fact that (i) the MPD and ATG were switched to manual mode without due authorization; (ii) there were instances indicating increase in the level of product in underground tanks i.e. receipt of product during the period when no supplies were effected by answering Respondent, which tantamount to obtaining stocks from sources other than the Respondent as well as unauthorized purchase/sale during the period of suspension;
(iii) no established reasons for positive stock variation in the underground tank as per inspection report dated 27.01.2023;
(iv) The meter jump in the MPD as claimed by writ-applicant as a reason for alleged gain observed, was rejected by OEM as per report dated 26.04.2022; (v) even after sales and supplies were suspended from 27.01.2022, sales to the tune of 13233 litres of HSD through MPD Sr. No. 12EB0346V and 23,888 litres of MS and 19,191 litres of HSD through MPD Sr. Page 24 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024 NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined No.12EB0345V happened till 26.03.2022 i.e. till date on which nozzles were sealed by field officer after getting market information that sales were still continuing from the Retail Outlet; (vi) even in the panchnama prepared on the date of serving termination notice, it is recorded that MS sales through bottles was happening at the site which is also video graphed indicates practices of unauthorized sales was continued till the time termination order was served at the RO. From the aforesaid, it can be concluded that writ-applicant the Petitioner was involved in malpractices, negligence and dereliction of duty, not only as per the MDG but also the DPSL, who today seeks sympathy before this Hon'ble Court. 5.10 It was submitted that none of submissions made by the writ-applicant inspire any confidence, in fact most of the oral arguments as were canvased during the hearings are nothing but off the cuff submissions for which there are no corelating pleadings in the Petition. The submission that the writ- applicant is a woman from a minority community cannot Page 25 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024 NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined entitle the Petitioner any special fundamental right under the Constitution, whereby despite the serious irregularities, she is allowed to continue with the DPSL and also be in illegal and unauthorized possession of the Retail Outlet. As far as the submission that the Retail Outlet was damaged due to cyclone Tauktae, it is submitted that said cyclone made landfall on 14.05.2021 whereas the inspection during which serious irregularities were found was conducted on 27.01.2022, i.e. after a period of over 8 months. Hence, the argument that the electronic gadgets at the Retail Outlet were non-functional or damaged due to the cyclone is nothing but a farce and a clear after though so as to get out of the clutches of malpractice. The contention that as per MDG in case of stock variation beyond permissible limit mandated density checking / sampling of the product is also an eye wash since on all occasions stock variation came to notice after the product had been sold and hence it was impossible to check the product density for comparison or carry out sampling and sales register maintained by writ-applicant itself indicates nil sales of HSD for last few Page 26 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024 NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined days before the date of inspection as no product can be pumped out. The contention in this regard is therefore totally ill-founded and misconceived. The contention regarding ATG (Automated Tank Gauge) being faulty is also completely false and a bare perusal of the hourly tank stock report (Annexure- T/7, pages 535 to 591) also clearly proves that there was no defect in the ATG. Also no complaint related to ATG fault was lodged and 8 complaints claimed by writ-applicant are not related to ATG. A deliberate attempt was made during the hearing to mislead the Hon'ble Court by showing entries on page 535/536 wherein stocks of MS and HSD showed alleged jumping. A scrutiny of the same clearly reveals that there was no alleged stock variation.
5.11 As far as the reliance placed on the provisions of MDG is concerned, it was submitted that the Respondent was at liberty to terminate the DPSL not only as per the inherent terms thereof but also as per Chapter - 8 of the MDG (page
321) and more particularly Clause 8.2.VI whereby the action Page 27 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024 NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined prescribed is termination at first instance as well as Clause 8.3.IV and VIII, whereby also the writ-applicant's dealership ought to be terminated.
6. In light of the aforesaid order dated 28.8.2023, it is apposite to refer to the Dealership Agreement entered into between the parties. Relevant Clause read thus :-
"13. Notwithstanding anything to the contrary herein contained the Company shall at liberty to terminate this agreement forthwith upon or at any time on the of any of the events following :
i) The Licensees being an individual, if adjudged insolvent or a compromise is entered into by him with his creditors, or if a distress. Execution or other process is levied upon or if any incumbrancer takes possession of or a receiver is appointed of any part of the assets or property of the Licensees;
ii) The Licensees, being a firm, if any member of the Licensees is adjudged an insolvent or a compromise is entered into by the firm or any member of the firm with their creditors, or a distress, execution or other process is levied upon or if an incumbrancer takes possession of or a receiver is appointed of any part of the assets or property of the firm or any member of the firm;Page 28 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024
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iii) The Licensees, being a Company or Co-operative Society, goes into liquidation whether voluntarily or compulsory or if a distress, execution or other process shall be levied upon or if an incumbrancer takes possession or a receiver is appointed of any part of the property of the Licensees:
iv) If the Licence/s for the storage of petroleum products upon the premises is/are, cancelled or revoked.
(v) If the Licensees for any reason other than due to the Company's default fail to maintain supply to the public through the said facilities for any period exceeding 24 hours:
(vi) If the Licensees fail to make payment of their outstandings:
(vii) If the Licensees shall be guilty of a breach of any of the covenants and stipulations on their part contained in this agreement.
(viii) If the Licensees shall commit or suffer to be committed any act which in the opinion of the Marketing Director of the Company for the tinte being in Bombay or any other person nominated for this purpose hy the Company is prejudicial to the interest or good name of the Company or its products. The decision of such officer or person shall be final and binding on the Licensees.
(ix) Upon termination of any other agreement or licence from the Company to the Licensees without prejudice to any other right or remedy reserved thereunder.Page 29 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024
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(b) On the death or retirement or permanent incapacity of any partner of the Licensees (if a firm) the Company may at its option at once determine this Agreement and if the option shall not be exercised the agreement shall continue as between the Company and the surviving or continuing partners of the Licensees. The legal representatives off the deceased partners or the retiring partner shall be liable for all obligations of the Licensees incurred upto the date of death or retirement and shall not be entitled to claim from the Company any portion of the security deposit. The death of a partner shall be notified by the Lincensecs to the Company in writing within 24 hours of such death.
(c) Notwithstanding anything to the contrary herein contained, where the licensee being an individual, whether trading in his individual name or under a firm name, dies, this agreement shall stand terminated forthwith on such death of the Licensee. Each member of the Licensees firm and also every other person for the tane being and from time to time as a partner in the Licensees firm shall be jointly and severally liable in respect of all matters herein contained and shuil be and remain liable hereunder notwithstanding that he has ceused to be al partner in the said firm unless and until written notice of the fact shall have been received by the Company and the Company shall have agreed in writing 10 relieve him of his responsibility.
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(d) That if Licensees commit breach of any covenant and/or stipulation in this Licence, the Company shall not be bound to observe and perform its obligations hereunder.
(e) That the supply of Motor Spirit und/or H.S.D. and other Petroleum prachicts by the Company to the Licensees pending the expiry of any notice of termination or after any act, contravention or commission by the Licensees. In breach of this Licence shall not in any way prejudice or affect the right of the Company to revoke this Licence or to enforce the termination of this. Licence under the said notice.
14. The termination or purported termination of this Agreement shall be without prejudice to any claims or rights of action previously accrued to either party against the other.
15. Upon the revocation or termination of this Licence for any cause whatsoever the Licensees shall cease to have any rights whatsoever to enter or remain on the premises or to use the said facilities and shall be deemed to be trespassers if they continue to do so. Upon such termination or revocation either under cluuse 12 or clause 13 hereof, if the Licensees or their servants and/or agents remain on the premises, the Company shall be at liberty to evict them by using such means us may be necessary and prevent them from entering upon the licensed premises."
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NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined 6.1 The Marketing Discipline Guidelines-2012 for Retail Outlet / Superior Kerosene Oil Dealership, Relevant Clause read thus :-
"5.1.6 UNAUTHORISED PURCHASES / SALES OF MS/ HSD OR ANY OTHER PRODUCT WHICH COULD BE USED AS A SUBSTITUTE FOR THESE PRODUCTS Dealers should purchase only those petroleum products authorized by the principal Oil Company for sale from the Retail Outlet. Purchase of the products from sources other than those authorized by the oil company would be treated as unauthorized purchase.
Any sales of MS / HSD other than through the dispensing units of that RO would be treated as unauthorized sales.
5.1.11 STOCK FUEL VARIATION OF MS/HSD (Beyond Permissible limits) FUEL Stock reconciliation should be carried out and variation,if any, established after taking into account the normal operational variation of 4 % of tank stock and after considering the following factors :
(i) Evaporation / handling losses in MS as follows:
0.75% on quantity sold upto an annual average of 600 Kls 0.60% on additional quantity beyond an annual average of 600 Kls.
(ii) Handling losses in HSD as follows : Page 32 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024 NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined
0.25% on quantity sold upto an annual average of 600 Kls 0.20% on additional quantity beyond an annual average of 600 Kls
(iii) Shrinkage losses and Temperature variation losses on MS and HSD to be taken into account (only in those cases/locations where and when the Shrinkage Allowance / TVA is applicable) (Annexure - 8, 9, 10) 5.1.16 AUTOMATED RETAIL OUTLETS
(a) Dealer Operating the automated RO in Manual mode without authorization Where automation has been completed at a Retail outlet and if any dispensing unit/MPD is found to be operating in manual mode without proper authorization from the competent authority, it will be treated under this irregularity.
(b) In case ATG is switched off non-operational without authorization from the competent authority.
(c) Any deliberate action on the part of Dealership or their staff or any other agency to make any component of automation system (excluding MPDs / Dispensing Units /. ATGs) dysfunctional, partly or fully, without authorization from competent authority. (Authorization through e-mail or signed letter from Company official will only be admissible.) CHAPTER-8 8.2 Critical irregularities: The following irregularities are classified as critical irregularities: Page 33 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024
NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined i. Adulteration of MS/HSD (5.1.1) ii. Seals of the metering unit found tampered in the dispensing pumps. (5.1.2 (b)} iii. Totalizer seal of dispensing unit tampered or deliberately making the totalizer non functional or not reporting to the company if totalizer is not working. (5.1.3 read with 5.1.2) iv. Additional/Unauthorized fittings/gears/electronic component found in dispensing units/tampering with dispensing unit. (5.1.4
(a), (b), (c)} v. Unauthorized storage facilities (5.1.5) vi Unauthorized purchase / sales of products. (5.1.6) vii. Tank lorry carrying unauthorized product found under decantation at the RO (5.1.7) Action:
Termination at the FIRST instance will be imposed for the above Irregularities:
8.3 Major Irregularities : The following irregularities are classified as major irregularities:
i. Refusal by the dealer to allow drawl of samples /carry out inspections. (5.1.8) ii. Non availability of reference density at the time of inspection. (5.1.9) iii. Selling of normal MS/HSD as branded fuels. (5.1.10) iv. Stock variation beyond permissible limits but sample passing quality tests. (5.1.11) v. Non maintenance of records since last inspection. (5.1.12) vi. Overcharging of MS/HSD/CNG/ Auto LPG(5.1.13) Page 34 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024 NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined vii. Non provision of clean toilet facility. (5.1.14.b). viii. Automated Retail outlets : 5.1.16 (a), (b), (c) ix. Non-payment of Salary, Wages and other benefits (as per clause 5.1.18) to the manpower employed at the Ros.
x. Short delivery of products with W&M seals intact : 5.1.2 (a) Action: Except in case of (iii), (vii), (viii), (ix) & (x) above:
First instance: Suspension of sales and supplies for 15 days. Second instance: Suspension of sales and supplies for 30 days. Third instance: Termination of the dealership.
Action in case of (iii) above would be as under:-
First instance: Penalty of recovery of differential price since last inspection. Second instance: Termination of the dealership.
Action in case of (vii) above would be as under:-
First instance: Penalty of Rs. 15000 (Rupees Fifteen thousand) Second instance: Penalty of Rs. 25000 (Rupees Twenty Five thousand) Third & subsequent instances:
(a) Rs. 35,000 or 45% of the monthly dealer margin (based on average of last 6 months), whichever is higher; and
(b) Suspension of Sales and supplies for 7 days or rectification of the defect in toilet, whichever is later.Page 35 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024
NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined Action in case of (viii) above would be as under:-
First instance: Penalty of Rs. 1,00,000 (Rupees one lakh only) Second instance: Penalty of Rs. 2,00,000 (Rupees two lakhs only) and suspension of sales and supplies for 7 days Third instance: Termination of the dealership.
Action in case of (ix) above would be as under:-
First instance : Penalty of 20% of the monthly dealer margin (based on average of last 3 months).
Second instance : Penalty of 30% of the monthly dealer margin (based on average of last 3 months).
Third & subsequent instances : Penalty of 40% of the monthly dealer margin (based on average of last 3 months) & suspension of sales and supplies for 15 days.
Action in case of (x)above would be as under:-
First instance : Rs. 25,000 (Rupees twenty five thousand only) per nozzle found delivering short beyond permissible limit as specified in Legal Metrology Act /Rule.
Second instance : (within one year of 1st instance): Rs 50,000 (Rupees fifty thousand only) per nozzle found delivering short beyond permissible limit as specified in Legal Metrology Act/Rule & suspension of Sales and supplies for 15 days.
Third instance : (within one year of 1st instance): Termination Page 36 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024 NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined of the dealership.
7. In light of the aforesaid facts the following emerge for consideration of this Court :-
At the time of carrying out random inspection by the respondent authority on 27.1.20222 the following discrepancies were observed by the RO :-
(1) In HSD positive variation of 5 KL is observed since last ROIR, Mismatch is observed between nozzle meter readings recorded in the DSR and actual meter readings observed in MPD during inspection. Variation between recorded readings and actual readings is almost equal to gain observed in HSD which indicates that purposefully meter readings were adjusted while being recorded in the DSR.
As per MDG clause 5.1.11, Sales and supplies of all products is suspended with immediate effect and you are advised to provide reason for the positive stock variation with supporting Page 37 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024 NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined documentary evidence if any.
(2) RO was found partially dry in MS on 9,10,15,18 December and was fully cry on 16 and 17th December 2021. Also in HSD RO was found partially dry on 21,22,23,27,28 November, 16 December, 9,10,14 to 22 January and was fully dry on 17 December and from 24 January till date. On the date of inspection RO was dry in both products. As the said RO being kept dry of products / regularly, you have seriously violated the terms of DPSL agreement which is produced as below.
Clause 13(a) - Notwithstanding anything to the contrary herein contained the company shall be at liberty to terminate this agreement fortinvith upon or at any time on the happening of any of the events following:-
v. If the licensees for any reasons other than due to the company's default fail to maintain supply to the public through Page 38 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024 NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined the outfit for any period exceeding 24 hours.
3. DSM were not in uniform. MDG minor irregularity as per clause 5.1.17
4. MPD / ATG was switched to offline / manual mode without authorization from BPCL MDG violation as per clause 5.1.16.
7.1 The writ-applicant replied to the same by reply dated 2.2.2022 and various other communications. A show cause notice came to be issued to the writ-applicant pursuant to the reply dated 2.2.2022 on 20.6.2022.
7.2 The writ-applicant replied by communication dated 29.7.2022 to the said show cause notice mainly contending that,
(a) The writ-applicant had not visited the Petrol pump after 27.01.2022 and thereafter, upon asking the manager about the difference as per para no.3(c) and para no.3(d) of the show cause notice, it was found that the supply/sale was closed.Page 39 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024
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(b) The sale of 13,133 liter HSD as per para no.3(c) and 23,888 liter MS and 19,191 HSD as per para no.3(d)(ii) is not possible.
(c) MPD vide serial no.12EB0345V was sealed and the said seal is intact. The seal numbers are 7971707, 7971710, 7971727, 7971725 which are intact and question of sale does not arise.
(d) It was further replied that it is clear on the basis of the laboratory report that there is no tempering undertaken with the aforesaid machine.
(e) The main point of Reading Variation is not clearly mentioned.
(f) The variation is not in the hardware and software, however the same has occurred only due to technical/ electric error.
(g) The broken seals observed during inspection by the Sales Officer vide para no.3(d)(i), were tank seals broken by dogs or other wild animals which is clearly visible in the photographs of the broken seals.
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(h) In absence of properly repairing and the ATG machine not working properly even after repairing no error can be attributed to the writ-applicant.
7.3 Considering the reply of the writ-applicant the competent authority by order dated 12.1.2023 terminated the dealership. Paragraphs 5 to 9 of the said order read thus :-
"5. We have considered your explanation and it has not been found satisfactory. We find that you are guilty of breaches of Dealership Agreement as (a) you have used the retail outlet and facilities for stocking and selling of petroleum product of third party and not of the company. (b) you have indulged in unauthorised sale and purchase in clear violation. of company's instruction ( c) you have interfered with working part of the company's equipment and changed the constituents of facilities provided by the company. Each of above irregularities independently and separately constitutes breach of Dealership Agreement. As per Clause 13 of the Dealership agreement, Company is at liberty to terminate the dealership agreement if the Licensee is guilty of a breach of any of the covenants and stipulations on their part contained in the dealership agreement.
6. In view of above, we have decided to terminate the Dealership Agreement between you and Company, and we hereby terminate the same with immediate effect.Page 41 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024
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7. Please note that since the Dealership agreement has now been terminated, you and your staff, agent and other representative have no right of any nature to enter upon or remain on the retail outlet premises belonging to this company and /or use the pump, storage tank, pipes and fittings and all other facilities erected and provided by this company upon the said retail outlet premises.
8. Our Officers Shri Bhikha Ram Prajapat, Manager Sales, Shri Swapnil Kakde, Manager Engineeering and Shri Sujeet Jayarajan, Territory Co-ordinator (Retail), and their team will be at Retail outlet on 18.01. 2023 when you may come to the retail outlet to remove your belongings, if any, which you may have kept at retail outlet. Stock of petroleum products at the outlet would be measured and tested and appropriate credit for the same would be passed to your statement of accounts as per prescribed procedure.
9. This is without prejudice to any other rights the Company is having against you under the said Dealership Agreement or under law."
7.4 The aforesaid was subject matter of Appeal which came to be duly filed on 28.8.2023 whereby, by the impugned order dated 28.8.2023 the Appeal came to be dismissed against the termination order dated 12.1.2023 whereby the dealership agreement of the appellant was terminated. While passing the Page 42 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024 NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined impugned order the learned Appellate Authority recorded the following findings :-
"I have meticulously gone through the submissions and contentions made by the Appellant in the Appeal, personal hearing dated 29.05.2023 and additional submissions dated 03.06.2023.Ihave also gone through all the documents produced by the Appellant in support of the case. After due consideration, I record my findings as under:
1) It is the contention of the Appellant that the automation system was not working properly after the downfall of Tauktae Cyclone. It is also alleged by the Appellant that numerous complaints were made by the Appellant during the period from February 25, 2021, to January 27, 2022. However, it is observed from the BROMA log report that only 2 complaints related to ATG malfunction were lodged on 09.12.2021 and 19.01.2022, which were duly addressed and closed on 20.12.2021 and 03.02.2022 respectively. Further, it is also observed that the 8 complaints referred to by the Appellant in the Appeal and service reports produced in support thereof were not related to ATG. It is pertinent to note here that all the service reports were signed by the Appellant's representative and nowhere it is recorded that the complaint remained unresolved or the issue persisted.Page 43 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024
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2) The Appellant's major contention seems to be that ATG was not working properly and therefore ATG readings could not be relied upon for taking any action against the Appellant. I fail to see any substance in this contention as the alleged discrepancies highlighted by the Appellant in the ATG Hourly Tank Stock report vis-a-vis the Daily Sales Register (DSR) prepared and maintained by the Appellant is meaningless without relevant supporting data regarding the actual stock available in the tanks at the relevant points of time. It is pertinent to note here that the Appellant had never raised any complaint regarding variation in stock between the actual petroleum products available in the tanks and the ATG reading. Further, the Appellant fails to justify the act of switching the ATG to offline/manual mode without the authorization of the Respondent in violation of clause 5.1.16 of the MDG. The Appellant's contention that there was an oral suggestion from the supplier to replace the ATG instrument is without any proof in support thereof. It has been also alleged by the Appellant that the ATG supplier delivered new ATG probe on 27.06.2022 as it was found that the ATG installed at the Retail Outlet was not repairable. However, it is pertinent to note here that the complaint in this regard was, at no point in time, neither lodged by the Appellant nor by the Respondent through BROMA. The said ATG equipment was never replaced/installed at the Retail Outlet as there was never a complaint regarding malfunctioning ATG which requires replacement. Further, it has been confirmed by the ATG Page 44 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024 NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined equipment supplier that the dispatch of new ATG equipment was on the basis of the internal complaint lodged on 14.03.2022, when the sales and supplies were in fact suspended at the Retail Outlet. Hence it appears to be a desperate act of afterthought by the Appellant to cover up the irregularities/breaches committed.
3) The OEM lab report dtd. 26.04.2022 has observed that MPD 12EB0346V was switched to offline/manual mode on 15.01.2022. The Appellant has nowhere in the Appeal, personal hearing or additional submissions given any coherent reasons for this act of the Appellant. This act of the Appellant in switching the MPD to manual mode without the authorization of the Respondent is an established irregularity as per clause 5.1.16 of the MDG.
4) It is the contention of the Appellant that the Inspection Report dated 27.01.2022 is self-contradictory as it is recorded that the stock of petroleum products available as 775 litres of HSD (HSD tank 1), 649 litres of HSD (HSD tank 2) and 996 litres of MS (MS tank) and yet the report mentions about the tank being dry and drawing of sample not being possible. In this regard, there is no denying the fact that the tanks were having a stock less than 10% of the tank capacity. As the product levels were below dispensable limits, no sampling could be carried out by the Respondent's officer and the same has been recorded in the Inspection Report. Further, there is Page 45 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024 NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined no merit in the Appellant's contention that the density of the petroleum products was tested on 27.01.2022 when it has been specifically mentioned in the Inspection report dtd. 27.01.2022 that "all tanks found dry, density test could not be conducted"
and the same has been acknowledged by the Appellant's representative.
5) The Appellant contends that the Respondent ought not have terminated the Dealership Agreement for any breaches of the said agreement when there are guidelines (MDG) issued by the Government of India which is binding on all Oil Marketing Companies (OMCs). In my considered view, the Appellant has misconstrued the applicability and relevance of the DPSL Agreement and the MDG. The relationship between the Appellant and the Respondent is one that of contractual nature governed by the contractual terms as agreed between the parties in the DPSL Agreement. As per the terms of the DPSL Agreement, the Respondent is well within its rights to terminate the Agreement for any breaches committed by the Appellant. Further, it is not the case of the Appellant that no irregularities as laid down in the MDG were committed. The Show cause notice dated 20.06.2022 and the Termination order dated 12.01.2023 bring out in detail and establish that irregularities under the MDG which were committed by the Appellant. Therefore, this contention of the Appellant is without any merits.Page 46 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024
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6) The Appellant has denied sale of 23,888 litres of MS and 19,191 litres of HSD through MPD serial number 12EB0345V since suspension of sales at the Retail outlet on 27.01.2022. However, no proof in support of such contention has been provided by the Appellant. The Appellant further contends that no sales had happened through MPD 12EB0346V between 27.01.2022 and 21.02.2022 and that the meter readings of MPD evidencing sales is on account of jumping of readings. However, the OEM laboratory vide its report dated 26.04.2022 has cleared MPD serial number 12EB0346V by concluding that there were no traces or issues found with the said MPD which could impact the normal functioning of the Dispensing unit.
7) It is observed from the Inspection report dated 27.01.2022 that the physical measurement of stock as on 27.01.2022 was 775 Litres of HSD (HSD Tank 1),649Litres of HSD (HSD Tank 2) and 996 Litres of MS (MS tank). Whereas, on the inspection carried out on 19.05.2022 it was observed that there was 959 Litres of HSD and 1468 Litres of MS available. During the period 27.01.2022 to 19.05.2022, sales were suspended, and no load was supplied by the Respondent to the Appellant. This very clearly establishes that the Appellant was involved in unauthorized sale/purchase of petroleum products in clear violation of clause 5.1.6 of the MDG.
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8) It is the contention of the Appellant that the seals affixed on the tank unloading points on 26.03.2022 were damaged by stray dogs or wild boar and the Appellant has produced a certificate from the Range Forest Officer, Rajula in support thereof. It sounds very strange that the stray animals would have come to the Retail Outlet to intentionally damage tiny sized hard plastic seals and that too in three different tanks. Even assuming that damage to seals of the tanks were due to animals in the locality, the Appellant fails to give any logical reasoning for the change in stock quantity inside the tanks between 27.01.2022 and 19.05.2022, when the sales and supplies were totally suspended at the Retail outlet. Therefore, the argument that seals were damaged by animals is of no avail to the Appellant.
9) Further, the Appellant has not been able to justify the positive stock variation observed during the inspection carried out on 27.01.2022. The explanation given by the Appellant regarding jumping of reading in MPD 12EB0346V is also untenable considering the fact that the OEM report dated 26.04.2022 has given a finding that the said MPD was working properly and that there was no defect in it. This establishes that there was stock variation beyond permissible limits on account of the acts of the Appellant in clear violation of clause 5.1.11 of the MDG.
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NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined In view of the above findings, I find no reason to interfere with the termination order dated 12.01.2023 and accordingly, the Appeal is hereby dismissed."
7.5 In light of the aforesaid, this Court has considered the order passed by the Appellate Authority wherein the appellant authority has considered all the contentions raised by the writ- applicant granting opportunity of hearing and passed the impugned order taking into consideration the MDG Guidelines which are applicable in the facts of the present case. This Court has also considered the contentions which read as under:-
I have considered the contentions raised by the writ-
applicant while passing the impugned order :-
(a) The contention of the writ-applicant that the automation system was not working properly after the downfall of Tauktae Cyclone was considered by the Appellant authority wherein it is held that all the service reports were signed by the appellant's representative and nowhere it is recorded that the complaint remained unresolved or the issue persisted.Page 49 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024
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(b) The writ-applicant main contention that the ATG was not working properly and, therefore, ATG readings could not be relied upon for taking any action against the Appellant.
The appellate authority considered the aforesaid contention and held that the appellant never raised any contention with regard to stock variation between the actual petroleum products available in the tanks and the ATG reading. Further, the appellant switching the ATG to offline/manual mode without the authorization of the respondent which held to be in violation of Clause 5.1.16 of the MDG.
The OEM Lab report dated 26.4.2022 has observed that the Appellant has switched the MPD to manual mode without the authorization of the respondent is an established irregularity as per clause 5.1.16 of the MDG.
The aforesaid has remained unexplained either by the writ-applicant either in the Appeal proceeding pursuant to the hearing or additional submissions by assigning any coherent reasons for such act of the Appellant.
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(c) The writ-applicant's contention that there was an oral suggestion from the supplier to replace the ATG instrument is devoid of any proof.
(d) The allegation of the writ-applicant that the ATG supplier delivered new ATG probe on 27.06.2022 as it was found that the ATG installed at the Retail Outlet was not repairable.
The aforesaid is answered by the appellant authority that, the complaint in this regard was, at no point in time, neither lodged by the appellant nor by the respondent through BROMA. The said ATG equipment was never replaced/installed at the Retail Outlet as there was never any complaint regarding malfunctioning ATG which requires to be replaced.
It is further held that the said is confirmed by the ATG equipment supplier that the dispatch of new ATG equipment was on the basis of the internal complaint lodged on 14.03.2022, when the sales and supplies were in fact suspended at the Retail Outlet. Hence it is held that writ- applicant has undertaken the aforesaid exercise to cover up the Page 51 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024 NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined irregularities/breaches committed.
(e) The contention of the Appellant that the Inspection Report dated 27.01.2022 is self-contradictory as it is recorded that the stock of petroleum products available as 775 litres of HSD (HSD Tank 1), 649 litres of HSD (HSD Tank 2) and 996 litres of MS (MS Tank) and yet the report mentions about the tank being dry and drawing of sample not being possible.
The aforesaid is answered by the Appellate Authority that denying the fact that the tanks were having a stock less than 10% of the tank capacity. As the product levels were below dispensable limits, no sampling could be carried out by the respondent's officer and the same has been recorded in the Inspection Report. Further, it is held by the Appellate Authority that appellant's contention that the density of the petroleum products was tested on 27.01.2022 when it has been specifically mentioned in the Inspection report dated 27.01.2022 that "all tanks found dry, density test could not be conducted" and the same has been acknowledged by the appellant's representative.
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(f) The contention of the writ-applicant that the dealership agreement ought to have been terminated by the respondent authority when there are no guidelines (MDG) issued by the Government of India which is binding on all Oil Marketing Companies (OMCs).
The aforesaid was considered by the Appellate Authority wherein it is held that the relationship between the appellant and the respondent is one of contractual nature which is governed by the conditions of the DPSL Agreement arrived at mutually between the parties.
As per the terms of the DPSL Agreement, it is within the rights of the respondent to terminate the Agreement for any breaches committed by the writ-applicant - appellant.
The Show cause notice dated 20.06.2022 and the Termination order dated 12.01.2023 bring out details and establish that irregularities under the MDG were committed by the appellant.
(g) The appellant denied the sale of 23,888 litres of MS and 19,191 litres of HSD through MPD serial Number- Page 53 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024
NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined 12EB0345V since suspension of sales at the Retail outlet on 27.01.2022.
The Appellate Authority considering the aforesaid submission held that in absence of any proof to support such contention that no sale occurred between 27.01.2022 and 21.02.2022 and that the meter readings of MPD evidencing sales is on account of jumping of readings was not tenable.
The OEM laboratory vide its report dated 26.04.2022 has cleared MPD serial Number-12EB0346V by concluding that there were no traces or issues found with the said MPD which could impact the normal functioning of the Dispensing unit.
Further it is held by the Appellate Authority that the Inspection report dated 27.01.2022 that physical measurement of stock as on 27.01.2022 was 775 Litres of HSD (HSD Tank
1), 649Litres of HSD (HSD Tank 2) and 996 Litres of MS (MS tank). Whereas, the inspection carried out on 19.05.2022 it was observed that there was 959 Litres of HSD and 1468 Litres of MS available. During the period from 27.01.2022 to 19.05.2022, sales were suspended, and no load was supplied Page 54 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024 NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined by the respondent to the appellant.
Placing reliance on the aforesaid, Appellate Authority held that the writ-applicant was involved in unauthorized sale/ purchase of petroleum products in clear violation of Clause 5.1.6 of the MDG.
(h) The contention raised by the writ-applicant - appellant that the seals affixed on the tank unloading points on 26.03.2022 were damaged by stray dogs or wild boar and the aAppellant had produced a certificate from the Range Forest Officer, Rajula in support thereof.
The said contention did not weigh with the Appellate Authority. The contention that the stray animals would have come to the Retail Outlet to intentionally damage tiny sized hard plastic seals and that too in three different tanks. Assuming that damage to seals of the tanks were due to animals in the locality, the Appellant Authority failed to see a logical reasoning for change in stock quantity inside the tanks between 27.01.2022 and 19.05.2022, when the supplies were suspended at the Retail outlet. The argument that seals were Page 55 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024 NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined damaged by animals did not appeal to the Appellant Authority.
The writ-applicant appellant failed to justify the positive stock variation observed during the inspection carried out on 27.01.2022. The explanation given by the appellant regarding jumping of reading in MPD 12EB0346V was held to be untenable considering the fact that the OEM report dated 26.04.2022 has given a finding that the MPD was working properly and that there was no defect in it.
The establishes that there was stock variation beyond permissible limits on account of the acts of the appellant in violation of clause 5.1.11 of the MDG.
8. In view of the aforesaid, the respondent authority having held that the writ-applicant had resorted to unauthorised sale as also stock variation of fuel was noticed, the respondent authority was duty bound to take action under Clause 5.1.6 and 5.1.11 of the Marketing Discipline Guidelines, 2012. Clause 5.1.6 falls within Chapter-8.2 of Chapter-VIII Critical Irregularities. The action to be taken with respect to critical Page 56 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024 NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined irregularities is that of termination at first instance. Clause 5.1.16 falls under major irregularity and in view thereof no interference is called for in the impugned order passed by the respondent authority.
8.1 This Court has also considered the documents which are produced on record and it appears that pursuant to the said Joint Observation Report dated 22.2.2022 show cause notice came to be issued to the writ-applicant herein on 20.6.2022 seeking explanation as to why the dealership should not be terminated. The appellant replied to the said show cause notice on 29.7.2022 and subsequently personal hearing was also afforded on 3.10.2022. As the explanation submitted by the appellant were not found satisfactory, the Corporation terminated the dealership.
8.2 The show cause notice is with respect to unauthorised sale or purchase of products i.e. unauthorised product sale/purchaser and consequent decantation observed at the RO Page 57 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024 NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined and seals of the tanks were found to be broken and unlocked. The multi product dispenser and automated tank gauge was placed on manual mode without the consent of the Corporation. In the retail outlet, partially and fully 'dry' on various dates mentioned on letter dated 27.1.2022 addressed at para-3 to the said show cause notice.
The averment that the electronic gadgets were not working, both MPD and ATG were working as on date of inspection i.e. 27.1.2022 and the sale was going on. Both equipments were changed to manual mode and the OEM has provided log of the same. The Appellate Authority rightly held that ATG issue as reported on 19.11.2021 was resolved much prior to the next inspection. The retail outlet was running in automation mode before the cyclone effect. The spares of MPD Serial No.12EB0346V were sent to Original Equipment Manufacturer ("OEM") laboratory and other MPD were never sent. Comparison by the writ-applicant between ATG stocks as per their own record cannot be relied upon as the time of Page 58 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024 NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined physical stock checking and authenticity of its recording is questionable. The writ-applicant never complained with regard to the mismatching in stock level. Reliance placed on Hourly Tank Stock Report as contended in the rejoinder and the same is produced at page-535 (Annex.P/7) is a technical report, wherein technical expertise is required. This Court under Article 226 of the Constitution of India would not sit in Appeal over the order passed by the Appellate Authority, wherein the said order is passed taking into consideration the Marketing Discipline Guidelines, the report of two members committee constituted on 21.2.2022 and 19.5.2022 and proceeded the panchnama drawn at the time of retail outlet on site and proceeded to pass the final order. The complaint which was reported was duly attended by the OEM vendor and was resolved on 20.12.2021. None of the complaints, out of the eight complaints lodged between 25.1.2021 to 27.1.2021 pertain to ATG malfunctioning. The ATG equipment was supplied on an internal complaint lodged on 14.3.2022 i.e. after inspection dated 27.1.2022, when the sales were Page 59 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024 NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined suspended and no complaint from the answering respondent dealer was raised to the supplier. The OEM indicates that there is no mismatch in meter reading neither there is any jump in the meter reading. The aforesaid was considered by the Appellate Authority while rejecting the Appeal filed by the writ-applicant herein.
9. In the opinion of this Court, the contention of the writ- applicant that the seals were broken by the animal is of no avail to the writ-applicant herein considering the fact that the retail-outlet of the writ-applicant was under suspension since 27.1.2022. In light of the aforesaid, the respondent authority has invoked Clause 8.2(6) and 8.3(8) of the Marketing Discipline Guideline, 2012 for retail-outlet/superior of the kerosene, oil dealership.
9.1 This Court has also considered the documents produced on record, reports by the respondent authority which are produced on record and also the contentions raised by Mr. Page 60 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024 NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined Mangukiya, the learned advocate appearing for the writ- applicant in rejoinder that the writ-applicant herein had been agitating the grievance with respect to jumping of the meter to the respondent authority, however the complaints are not considered by the respondent authority. This Court has considered the aforesaid contention raised by the writ-applicant wherein it appears that the writ-applicant herein raised grievance with respect to variation in the meter reading prior to 27.1.2022. The complaints with respect to mal-functioning as stated by the writ-applicant in the rejoinder are between December, 2021 and 9.1.2022. The complaint of 19.1.2022 is addressed on 3.2.2022 and in between the inspection was undertaken on 27.1.2022 and RO was placed under suspension.
10. In view of the aforesaid, it is apposite to refer to the following position of law :-
(A) The Hon'ble Supreme Court in case of M/s. N.G. Projects Limited v. M/s. Vinod Kumar Jain & Ors. in Civil Appeal No. Page 61 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024 NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined 1846 of 2022, the Court has in no uncertain terms held that "In contracts involving technical issues, the Courts should be even more reluctant because most of us in judges' robes do not have the necessary expertise to adjudicate upon technical issues beyond our domain".
"13. This Court sounded a word of caution in another judgment reported as Silppi Constructions Contractors v. Union of India and Ors.6, wherein it was held that the Courts must realize their limitations and the havoc which needless interference in commercial matters could cause. In contracts involving technical issues, the Courts should be even more reluctant because most of us in judges' robes do not have the necessary expertise to adjudicate upon technical issues beyond our domain.
As laid down in the judgments cited above, the Courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder. In fact, the courts must give "fair play in the joints" to the government and public sector undertakings in matters of contract. Courts must also not interfere where such interference would cause unnecessary loss to the public exchequer. It was held as under:-
"19. This Court being the guardian of fundamental rights is duty bound to interfere when there is arbitrariness, irrationality, mala fides and bias. However, this Court in all the aforesaid decisions has cautioned time and again that courts should exercise a lot of Page 62 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024 NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined restraint while exercising their powers of judicial review in contractual or commercial matters. This Court is normally loathe to interfere in contractual matters unless a clear-cut case of arbitrariness or mala fides or bias or irrationality is made out. One must remember that today many public sector undertakings compete with the private industry.
The contracts entered into between private parties are not subject to scrutiny under writ jurisdiction. No doubt, the bodies which are State within the meaning of Article 12 of the Constitution are bound to act fairly and are amenable to the writ jurisdiction of superior courts, but this discretionary power must be exercised with a great deal of restraint and caution. The Courts must realize their limitations and the havoc which needless interference in commercial matters can cause.
In contracts involving technical issues the courts should be even more reluctant because most of us in judges' robes do not have the necessary expertise to adjudicate upon technical issues beyond our domain. As laid down in the judgments cited above the courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder . In fact, the courts must give "fair play in the joints" to the government and public sector undertakings in matters of contract. Courts must also not interfere where such interference will cause unnecessary loss to the public exchequer.
20. The essence of the law laid down in the judgments referred to above is the exercise of restraint and caution; the need for overwhelming public interest to justify judicial intervention in matters of contract involving the state instrumentalities; the courts should give way to the opinion of the experts unless the decision is Page 63 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024 NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined totally arbitrary or unreasonable; the court does not sit like a court of appeal over the appropriate authority; the court must realize that the authority floating the tender is the best judge of its requirements and, therefore, the court's interference should be minimal.
The authority which floats the contract or tender and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted. The courts will only interfere to prevent arbitrariness, irrationality, bias, mala fides or perversity. With this approach in mind, we shall deal with the present case."
22. The satisfaction whether a bidder satisfies the tender condition is primarily upon the authority inviting the bids. Such authority is aware of expectations from the tenderers while evaluating the consequences of non-performance. In the tender in question, there were 15 bidders. Bids of 13 tenderers were found to be unresponsive i.e., not satisfying the tender conditions. The writ petitioner was one of them. It is not the case of the writ petitioner that action of the Technical Evaluation Committee was actuated by extraneous considerations or was malafide. Therefore, on the same set of facts, different conclusions can be arrived at in a bona-fide manner by the Technical Evaluation Committee. Since the view of the Technical Evaluation Committee was not to the liking of the writ petitioner, such decision does not warrant for interference in a grant of contract to a successful bidder.
23. In view of the above judgments of this Court, the Writ Court should refrain itself from imposing its decision over the decision of the employer as to whether or not to accept the bid of a tenderer. Page 64 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024
NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined The Court does not have the expertise to examine the terms and conditions of the presentday economic activities of the State and this limitation should be kept in view. Courts should be even more reluctant in interfering with contracts involving technical issues as there is a requirement of the necessary expertise to adjudicate upon such issues.
The approach of the Court should be not to find fault with magnifying glass in its hands, rather the Court should examine as to whether the decision-making process is after complying with the procedure contemplated by the tender conditions. If the Court finds that there is total arbitrariness or that the tender has been granted in a malafide manner, still the Court should refrain from interfer- ing in the grant of tender but instead relegate the parties to seek damages for the wrongful exclusion rather than to injunct the execution of the contract. The injunction or interference in the tender leads to additional costs on the State and is also against public interest. Therefore, the State and its citizens suffer twice, firstly by paying escalation costs and secondly, by being deprived of the infrastructure for which the present-day Governments are expected to work."
(B) In the case of Letters Patent Appeal No. 160 of 1989 in Special Civil Application No. 3943 of 1982 decided on 11.04.2020 in case of M.S. Desai and Co. V/s. Hindustan Petroleum Corp. Ltd., the the Hon'ble Division bench has held that "If the appellants wants restoration of the dealership Page 65 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024 NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined agreement executed between the parties and we are of the view that such relief cannot be granted in a petition under Article 226 of the Constitution of India". The relevant para reads thus:
"11. Even if it is assumed for the purpose of argument that the second set of instructions dated March 1, 1982 were applicable to the facts of the present case, we are of the firm opinion that the action taken by the respondent Corporation in terminating the dealership agreement is not liable to be voided on the ground that it is contrary to those instructions. It hardly needs to be emphasised that the consumers are entitled to unadulterated petroleum products for which they pay high prices. If petrol is adulterated with diesel it has two effects. The consumer gets lower quality of petrol and pay higher price. Such malpractice is rightly not tolerated by the petroleum companies. Moreover, the adulteration not only pollutes the air but is also seriously viewed by the legislature which can be seen from different control orders promulgated under the provisions of the Essential Commodities Act, 1955. If instructions dated March 1, 1982 were to be followed, no steps could have been taken till another case of adulteration was found against the appellant. It is a common knowledge that with scanty staff it is not possible for the authorities to take sample every day from all retail outlets and subject them to laboratory test. Therefore, to say that dealership agreement cannot be terminated till second lapse is found is contrary to the overwhelming public interest and policy. The instructions dated Page 66 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024 NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined March 1, 1982 are contrary to public interest as well as public policy namely that adulteration should be viewed seriously. Therefore, those instructions cannot be enforced by way of writ of Court. On the basis of such instructions no relief can be granted to the dealer who has admittedly adulterated petroleum product, in a petition under Article 226 of the Constitution. To put it differently, if the respondent Corporation is called upon to adhere to the instructions dated March 1, 1982, it would give further opportunity to the appellant to adulterate petroleum products and perpetuate malpractices which cannot be done in a petition under Article 226 of the Constitution. Therefore, even if it is held that the second set of instructions dated March 1, 1982 are applicable to the facts of the present case, the appellant is not entitled to any relief in the present petition. For these very reasons no relief can be granted to the appellant on the basis of instructions of 1998 which are sought to be produced on the record of the case by affidavit of Smt. Sulochanaben K. Desai."
"18. The decision of the respondent Corporation to terminate the dealership agreement indicates that everything is considered i.e., terms of contract, three instructions, factum of having taken sample and found adulterated, notice dated November 1, 1981, etc. The order was not made improperly, mistakenly nor with closed mind nor contrary to principles of natural justice. In order to enable the appellant to make effective representation, even punishment proposed was also indicated in the show cause notice which cannot be termed as the respondent having made up its mind in advance as is contended on behalf of the appellant. The Court in a petition under Article 226 of the Constitution does not exercise appellate powers and the Court can examine whether decision making Page 67 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024 NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined process is vitiated in any manner or not. The action of the respondent Corporation is neither found to be arbitrary nor irrational nor irrelevant and, therefore, is not liable to be voided in the present appeal. In fact the prayers claimed in paragraph 26 of the petition would indicate that the petitioner wants direction against the respondent to resume supplies of petroleum products to the appellant and not to terminate the dealership agreement. In substance, the appellant wants restoration of the dealership agreement executed between the parties and we are of the view that such a relief cannot be granted in a petition under Article 226 of the Constitution. The principle of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism. However, as observed by the Supreme Court in Tata Cellular (supra) there are inherent limitations in exercise of that power of judicial review. Duty of the Court is to confine itself to the question of legality. Its concern should be: whether a decision making authority has (1) exceeded its powers, (2) committed an error of law, (3) committed a breach of the rules of natural justice, (4) reached a decision which no reasonable Tribunal would have reached; or (5) abused its powers. The discussion made above does not indicate that the decision making authority has exceeded its powers or that it has committed any error of law or breach of the rules of natural justice or reached a decision which no reasonable Tribunal would have reached or abused its powers. Therefore, no case is made out by the appellant to interfere with the impugned judgment. The result is that the appeal is liable to be dismissed."
11. In view of the aforesaid, this Court is not inclined to sit Page 68 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024 NEUTRAL CITATION C/SCA/15934/2023 ORDER DATED: 15/02/2024 undefined in Appeal over the findings recorded by a competent Appellate Authority to reappreciate the evidence for itself, or to correct an error of fact, the evidence on which it is based is satisfactory or sufficient. No interference is called for to exercise extraordinary jurisdiction under Article 226 of the Constitution of India, whereby the respondent has terminated the DSPL considering the violation of the terms of the contract as referred above as per Chapter-8 of the Marketing Discipline Guidelines and Dispensing Pump and Selling License as also as per Chapter-8 of the MDG and more particularly Clauses 8.2.VI of and 8.3.VIII of the MDG whereby the action prescribed is termination at first instance as well as Clauses 8.3.IV of and 8.3.VIII of the MDG whereby the writ- applicant's dealership ought to be terminated.
12. With the aforesaid, the present writ-application stands dismissed.
(VAIBHAVI D. NANAVATI,J) K.K. SAIYED Page 69 of 69 Downloaded on : Mon Feb 19 20:43:37 IST 2024