Madhya Pradesh High Court
M/S Shri Balaji Service Station ... vs Executive Director (Retails Sales S And ... on 12 April, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 W.P.No.19423/2022
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 12th OF APRIL, 2024
WRIT PETITION No. 19423 of 2022
BETWEEN:-
M/S SHRI BALAJI SERVICE STATION
"YASHAWINI" INDIAN OIL DEALER
UDAIPURA DISTRICT RAISEN
THROUGH ITS PROPRIETOR
DEVENDRA RAGHUWANSHI S/O LATE
SHRI VIRENDRA SINGH AGED ABOUT
44 YEARS R/O FLAT NO. 39 BLOCK NO. 3
SOUTH AVENUE BHARAT NAGAR
BHOPAL (MADHYA PRADESH)
.....PETITIONER
(BY SHRI SACHIN SINGH YADAV - ADVOCATE)
AND
1. EXECUTIVE DIRECTOR (RETAILS
SALES-S AND W) INDIAN OIL
CORPORATION LTD. INDIAN OIL
BHAWAN G-9 ALI YAVER JUNG
MARG BANDRA (E) MUMBAI
(MAHARASHTRA)
2. INDIAN OIL CORPORATION LTD.
BHOPAL DIVISION OFFICE FIRST
FLOOR "INDIAN OIL BHAWAN" 16
ARERA HILLS JAIL ROAD BHOPAL
(MADHYA PRADESH)
3. INDIAN OIL CORPORATION LTD.
BHOPAL DIVISION OFFICE
THROUGH CHIEF DIVISIONAL
RETAIL SALES MANAGER FIRST
FLOOR INDIAN OIL BHAWAN 16
ARERA HILLS JAIL ROAD BHOPAL
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI ADITYA ADHIKARI - SENIOR ADVOCATE WITH SHRI
E.N.SIDDIQUI - ADVOCATE )
...................................................................................................
2 W.P.No.19423/2022
This petition coming on for admission this day, the court passed
the following:
ORDER
This petition under Article 226 of Constitution of India has been filed seeking the following reliefs :-
"(i) Issue a writ order or direction in the nature of certiorari thereby quashing impugned order dt. 11.05.2022 (Annexure P-1) passed by the appellate authority i.e. respondent no.1 as well as terminating the dealership of petitioner by impugned order dt. 27.02.2014 (Annexure P-2) passed by the respondent no.3, in the interest of justice.
(ii) To issue a command for production of entire record for kind perusal of the Hon'ble High Court;
(iii) To grant any other relief deemed just and proper in the facts and circumstances of the case."
2. It is submitted by counsel for petitioner that he was having a retail outlet in the name and style of M/s Balaji Service Station at Udaipura, District Raisen. On 12.08.2013 a random inspection was made and inspection report was prepared wherein it was reported that W&M wire on metering unit of MS/Sprint was found broken. However, in the inspection no short supply was found nor seals of the weight and measurement department were reported to be broken. On the basis of inspection report, a show cause notice was issued to petitioner alleging that W&M wire on metering unit of MS/Sprint 3 W.P.No.19423/2022 was found broken, therefore, the petitioner has committed a breach of clauses 7(b), (h), 42, 45( a, K, & o) dealership agreement read with clause 5.1.2(b)(3) of Marketing Discipline Guidelines, 2012 (MDG-2012). Accordingly, the petitioner was called upon to show cause as to why the dealership should not be terminated. A reply to the show cause notice was filed alleging inter alia that during re- stamping, the sealed wire was not changed and due to rains, the wire might have caught rust and got weakened and ultimately broke down.
3. It was further alleged that Mr. Ratandeep Singh, Senior Sales Executive, is in habit of teasing the dealers and on the earlier point of time, since the petitioner failed to fulfill the demands of Mr. Ratandeep Singh, resultantly petitioner was trapped in false case by Mr. Ratandeep Singh and he himself deliberately twisted the sealing wire during the inspection.
4. The respondent no.3 vide order dated 27.02.2014 terminated the dealership of petitioner for violation of clauses 7(b), (h). 42,45 (a, K, & o) dealership agreement read with clause 5.1.2(b)(3) of MDG-2012.
5. Being aggrieved by the said order, the petitioner preferred a Writ petition before this Court, which was registered as W.P.No.5249/2014, which was dismissed on 9.04.2014 with liberty to the petitioner to avail the alternative remedy. The order passed by the writ court was challenged in Writ Appeal No.398/2014, which was disposed of by order dated 15.05.2014 with a direction that pending finalization of the appeal that may be filed by the petitioner 4 W.P.No.19423/2022 in pursuance of the order passed by the writ court, the respondent shall not create any third party interest with regard to the dealership and the decision taken may be kept in abeyance till the appeal is not disposed of in accordance with law. Accordingly, the petitioner preferred an appeal under clause 8.9(1) of MDG, 2012. The petitioner also filed a copy of letter dated 03.04.2014 issued by Inspector, Weight & Measurement Department, in which it was mentioned that the quantity of delivery of fuel was found correct and wire near the W& M seal was appear to have been rusted. Since the respondents were trying to create third party interest in retail outlet and also trying to remove the dispensing units and other machineries without finally disposing of the appeal, therefore, the petitioner preferred W. P. No.5969/2018, which was disposed of by order dated 16.03.2018 by directing the parties to maintain the status quo. In spite of that, the respondents took the physical possession of retail out of petitioner and handed over to M/s Bakhtara Service Station by issuance of appointment letter for temporary operation of retail outlet.
6. By this writ petition, the petitioner has challenged the termination of his dealership. Challenging the orders passed by the appellate authority as well as by the competent authority, it is submitted that the respondents have changed their version from place to place. Initially, the case of the respondents was that sealing wire was found broken; whereas before the appellate authority, it was the case of the respondents that the seal itself was broken. Since no short supply was found, therefore, the termination of dealership is harsh.
5 W.P.No.19423/20227. Per contra, the petition is vehemently opposed by the counsel for respondents. It is submitted by Shri Aditya Adhikari that right from the beginning the case of petitioner is that sealing wire was found broken. It is submitted that even in the submissions of Indian Oil Corporation Limited recorded by the appellate authority, it was specifically mentioned that during the inspection sealing wire of the measuring unit of sprint machine was found to be broken and machine was sealed. However, it appears that the appellate authority has wrongly mentioned that the retail outlet was terminated on 27.2.2014 as seals of the Weights and Measures Department were found broken as per the terms of MDG-12. It is submitted that even it is clear from the show cause notice as well as the termination order dated 27.2.2014 it was specifically mentioned that the sealing wire was found broken.
8. It is further submitted that as per Clause 42 of Petrol(MS)/High Speed Diesel oil (HSD) Retail Outlet Dealership Agreement for Corporation Owned/Leased Sites, the Dealer shall at all times faithfully, promptly and diligently observe and perform and carry out at all times all directions, instructions, guidelines and orders given or as may be given from time to time by the Corporation or its representative(s) on safe practices and marketing discipline and/or for the proper carrying on of the Dealership of the Corporation. The Dealer shall also scrupulously observe and comply with all laws, rules, regulations and requisitions of the Central/State Government and of all authorities appointed by them or either of them including in particular the Chief Controller of Explosives, Government of India and/or any other local authority with regard to the safe practices.
6 W.P.No.19423/20229. It is submitted by counsel for petitioner that various dealers had challenged MDG by filing writ petitions before different High Courts and on an application filed by Bharat Petroleum Corporation Limited, which was registered as Transfer Petition (Civil) No.2206/2017, it was directed by Supreme Court that it will be in the interest of justice that one High Court first decides the matter and accordingly the Delhi High Court was requested to decide W.P.(C) No.10334/2017, which was pending before it, preferably within three months from the date of order and the other High Courts were requested to proceed with the matter after the Delhi High Court decides the same.
10. It is submitted by counsel for respondents that W.P.(C)No.10334/2017 was allowed by the Single Bench of Delhi High Court by judgment dated 18.3.2020 by holding that MDG is not binding. However, the said judgment was challenged by the Indian Oil Corporation Limited in LPA No.24/2021 and the Division Bench of Delhi High Court in the case of Indian Oil Corporation Limited and others Vs. All India Petroleum Dealers Association Registered and others, reported in 2022 SCC OnLine Delhi 77 partly allowed the writ appeal and accordingly reading down of Clause 5.1.14(b) of the MDG-2017 by the Single Judge was upheld. It was also held that the penalties are imposed where malpractices and/or violation of guidelines are established as the dealers are expected to carry out business on the basis of highest business ethics and excellent customer service complying with the guidelines.
11. It is further submitted that accordingly a Coordinate Bench of this Court by order dated 10.3.2022 passed in the case of Jabalpur Petrol Diesel Dealer Welfare Association through its Secretary 7 W.P.No.19423/2022 Vs. Union of India, decided in Writ Petition No.19346/2017 has upheld the MDG.
12. By referring to Clause 5.1.2(b)(3) of MDG-2012, it is submitted that if sealing wire is found broken and not in one piece then penal action is to be taken even if the delivery is found to be correct or excess.
13. By referring to Clause 8.2 of MDG-2012, which deals with critical irregularities, it is submitted that even if it is found that the seals of the metering unit are found tempered in the dispensing pumps {5.1.2(b)}, the same has been classified as critical irregularities and under these circumstances, it is submitted that the respondents were well within their right to terminate the dealership of the petitioner.
14. In reply, it is submitted by the counsel for petitioner that although the inspection took place on 12.8.2013 and MDG-2012 was in force but at later stage MDG was modified and, therefore, the amended MDG should have been made applicable to the case of the petitioner.
15. Heard the learned counsel for the parties.
16. The undisputed fact is that the inspection was carried out on 12.8.2013 and the MDG, which was in force on the said date, would be applicable. Undisputedly, MDG-2012 was applicable to the facts and circumstances of the case and any amendment at a later stage can not be made applicable with retrospective effect.
17. It is the case of the respondents that the sealing wire of metering unit was found broken. It is submitted by counsel for petitioner that in fact it was Mr.Ratandeep Singh, Senior Sales 8 W.P.No.19423/2022 Executive, who had a personal grudge against the petitioner and had deliberately twisted the sealing wire during the inspection.
18. It is suffice to mention her that this Court cannot consider the said allegation because Shri Ratandeep Singh, Senior Sales Executive has not been impleaded as party to this writ petition.
19. Clause 5.1.2 of MDG-2012 reads as under :-
"5.1.2 SHORT DELIVERY OF PRODUCTS
a) With Weights & Measures Department Seals intact Sales through the concerned dispensing unit to be suspended forthwith and recalibration and re-
stamping to be done before recommencement of sales.
b) With Weights & Measures department Seals tampered W&M department seals are put on Metering unit and Totaliser unit with the help of a sealing wire and a lead seal which is embossed by W&M inspector.
The seal would be deemed tampered in the following cases also:
1. Seal itself is missing
2. Different seal has been put other than embossed by W&M inspector
3. Sealing wire is broken and not in one piece.
In addition other situations which can lead to manipulation of delivery/quantity / totaliser may also be treated as tampering.
Penal action to be taken even if the delivery is found to be correct or excess.
9 W.P.No.19423/2022In case of this irregularity sales from the concerned dispensing unit to be suspended, DU sealed. Samples to be drawn of all the products and sent to lab for testing."
20. Thus, it is clear from the plain reading of Clause 5.1.2(b)(3) that if a sealing wire is found broken and is not found in one piece, then a penal action can be taken even if the delivery is found to be correct or excess.
21. Thus, the contention of the petitioner that there was no discrepancy in the quantity of fuel, which was being distributed by the petitioner, is of no consequences.
22. Clause 8.2(ii) of MDG-2012 reads as under :-
"8.2Critical Irregularities:
ii.Seals of the metering unit found tampered in the dispensing pumps.{5.1.2(b)}"
23. Thus, it is clear that if the seals of the metering unit is found tampered in the dispensing pumps{5.1.2(b)}, then the said irregularity can be classified as critical irregularity and as per Clause 8.2 the termination at the first instance will be imposed for the above irregularities.
24. Thus, it is clear that MDG-2012 gave ample authority to the respondents to terminate the dealership of the petitioner upon finding that the sealing wire was broken.
25. So far as the applicability of MDG-2012 is concerned, the same has already been upheld by a Coordinate Bench of this Court in the case of Jabalpur Petrol diesel Dealer Welfare Association (supra), in which the following order has been passed:-
"Petitioners are Petrol Pump Dealers at various locations. They have challenged the constitutional validity of the amended provisions contained in 10 W.P.No.19423/2022 clauses 1.5 (x), 5.1.2, 5.1.4(b), 5.1.16 and 5.1.18 as contained in Marketing Disciplines Guidelines.
It appears that similar writ petitions were filed in different High Courts in large numbers.
While considering the Transfer Petition (Civil) No.2206/2017 and other connected transfer petitions, Hon'ble Supreme Court on 27.11.2017 since was of the view that instead of allowing the transfer petitions, it was expedient to direct one of the High Courts to decide the lis of similar nature first, Delhi High court was requested to decide W.P.(C)No.10334 of 2017. Said Writ Petition was decided and allowed in favour of the petitioners turning down the impugned amendments as aforesaid. The judgment passed by learned Single Judge has been subject matter of LPA24/2021 and CM Appl.1843/2021 and other connected LPS heard on 24.11.2021 by the Division Bench of the Delhi High Court and the judgment has been delivered on 10.01.2022. The relevant part of the judgment necessary for disposal of this petition is quoted below :-
85. We are in complete agreement with the learned Single Judge that this is a matter which is best left to the discretion of the ROs Manager, who, we are sanguine, would be best suited to decide to whom the facility is to be extended. To this extent, the reading down of Clause 5.1.14 (b) of the MDG-2017, by the learned Single Judge, is upheld.
86. As a cumulative effective of aforesaid facts, reasons and judicial pronouncements, we hereby uphold the amendments to MDG-2012, incorporated on 03.10.2017, except to the limited extent as mentioned in paragraph 85, hereinabove and set aside the impugned judgment, passed by the learned Single Judge in WP (C) No.10334/2017, W.P.(C)No.10746/2017 and W.P.(C)No. 11246/2017, dated 18.03.2020.11 W.P.No.19423/2022
In view of the aforesaid authoritative pronouncement of law, this Court has no reason to disagree with the same. Accordingly, the instant Writ Petitions stand dismissed to the aforesaid extent.
A copy of this order be retained in each of the connected petitions."
26. Considering the totality of the facts and circumstances of the case, this Court is of considered opinion that no case is made out warranting interference.
27. The petition fails and is hereby dismissed.
(G.S.AHLUWALIA) JUDGE TG/-
TRUPTI GUNJAL 2024.04.15 16:22:49 +05'30'