Jharkhand High Court
Suneet Services vs Bharat Petroleum Corporation Ltd. And ... on 9 September, 2003
Equivalent citations: [2003(4)JCR267(JHR)]
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
JUDGMENT M.Y. Eqbal, J.
1. Petitioner M/s. Suneet Services proprietor of firm is a dealer of petroleum products of M/s. Bharat Petroleum Corporation Limited. By Agreement dated 20.2.1995 firm was granted a licence to deal in petroleum products for a period of 15 years.
2. It is contended by the petitioner that on 16.9.2002, the representative of the respondent company came to the premises of the petitioner and took samples for checking. Sample of tank No. 2 filled up with Motor Spirit was also tested. Vide letter dated 19.10.2002 written by the concerned respondent, petitioner was supplied with a copy of the inspection report stating therein that the samples found in tank No. 2 failed to meet the specification. Petitioner was called upon the explain reasons for failure of samples. Petitioner submitted its explanation, thereafter; impugned order was issued suspending sales and supply of all products for 30 days from the retail outlet of the petitioner. Besides that a fine of Rs. 20,000/- was also imposed and over and above petitioner was directed to remove underground tank and sent it to Haldia at the cost of the petitioner.
3. Mr. M.M. Banerjee, learned counsel for the petitioner submitted that in absence of any method available to the petitioner to check samples which is being delivered to the petitioner firm, the impugned order could not have been passed by the respondents. Learned counsel drawn my attention to the report and submitted that no discrepancy was found inasmuch as specification were within the limit except Research Octane Number.
4. Mr. M.K. Laik, learned counsel for the respondent Corporation mainly contended that right and liability of the parties are governed by the agreement and the impugned order was issued on account of violation of terms of the agreement by the petitioner. The question whether petitioner in fact violated the terms of the agreement is a disputed question of fact, which is not amenable to the writ jurisdiction.
5. Admittedly, from the report it appears that save and except RON all test were well and within the required limit. Only the RON of the sample which was taken from tank No. 2 was 85 whereas permissible limit is 88 minimum.
6. Similar question was raised before a bench of this Court in the case of Hirak Point, Dealer-Sbharat Petroleum Corp. Ltd. v. Bharat Petroleum Corp. Ltd. and Ors., WPC No. 6153 of 2002 ; See 2003 (1) JCR 315 (Jhr). A Bench of this Court while setting aside the imposition of fine held as under :
"The test report has been enclosed by petitioner as Annexure-3/1 which is the Annexure-C to the counter affidavit. The report shows that the motor spirit cleared all the test except research octane number P : 27. The requirement of IS-2796 : 2000 is 88 Min. The result of sample test of retail outlet (RO) was shown to be 80.0, tank loac (TL) was 85.0 and supply location (SL) as 89. Admittedly, the tanker belongs to the Bharat Petroleum Corporation Limited which loaded this motor spirit and on test it was found to be 85.0, i.e. below the requirement standard of 88 Min. From the aforesaid fact it will be evident that from the supply location (SL) when it was taken to the tanker of the Corporation the standard fell from 89.00 to 85.0 i.e. below the requirement level. Subsequently, when the tanker of the Corporation reached the retail outlet (RG) the standard further fell from 85.00 to 80.00.
Thus, sub-standard product having supplied by the Corporation from its premises the petitioner cannot be blamed for failure of stand 88.00 Min. to 80.00 till it is established that the petitioner was hand in globe with the driver of the Corporation's tanker or any employee of the Corporation.
For the reason aforesaid the order dated 9th November, 2002 is set aside with direction to respondents to refund the penal amount of Rs. 20.000/- to the petitioner immediately, if the petitioner has already deposited."
7. Taking into consideration the en tire facts and circumstances of the case, I am of opinion that the impugned order as contained in letter dated 22.10.2002 so far it imposed a fine of Rs. 20.000/- is set aside. The writ application is therefore al lowed in part.