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4. In the above background of the matter, Mr. Swain, learned counsel for Petitioners presently while reiterating the above in detail, taking this Court to the MDG, 2005 filed as Annexure-16 through additional affidavit and reading through the same claimed that for there is no drawing of the samples from the nozzles of the dispensing unit, there has been no following of the procedures prescribed in paragraph 2.2.2.3. Further taking this Court to the provision at paragraph 2.6(A) of the // 7 // MDG, 2005, Mr. Swain, learned counsel for Petitioners alleged that there is also violation in the collection of samples in a bottle, which is in clear contradiction of the procedure prescribed in paragraph 2.6(A) of the MDG Guideline. Mr. Swain, learned counsel for Petitioners also took this Court to the provision at paragraph 2.4.5(b) of the MDG Guideline to establish that for there is gross defect in collection of the sample, there is violation of the provision prescribed in the Guidelines. It is again taking this Court back to the provision at paragraph 2.2.2.3, Mr. Swain, learned counsel for Petitioner alleged here that the provision prescribes, the Inspecting Agency shall pay against the fuel they have collected and should obtain a money receipt from the counter of the outlet. It is alleged that there is in fact no following of the procedure even and the action of Opposite Party No.2 remains contrary to the procedure prescribed therein. Mr. Swain, learned counsel for Petitioners also alleged that there is violation of Guidelines in paragraph no.1.2(viii) as there has been no density testing and the report clearly discloses the column for density remains to be vacant. Mr. Swain, learned counsel for Petitioners claim that as there was collection of sample in contravention of the provision indicated hereinabove from the outlet of the Petitioners and submitted that while the stock of the retail outlet was below the minimum level, there was no possibility of collection of sample // 8 // through nozzle of the dispensing unit. Further the collection, if any, involving the oil was not available for sale. Mr. Swain, learned counsel for Petitioner raise a question that there was appearance of gross illegality for violation of the guidelines and the collection also remains contrary to the interest in the stock register and other document goes to clear that the diesel as available was not capable of being lifted. Petitioner even though attempted to satisfy the above aspect through the daily sale register, density register, meter reading of the dispensing unit and calibrated DIP Rod to check the underground tank stock and stock hold hanged in the Office room, however, all such attempt of the Petitioner went in vain. It is on the premises that there is gross illegality in the collection of sample and test remains in violation of the provisions indicated hereinabove, Mr. Swain, learned counsel for Petitioner claimed that there is illegal consideration of the whole aspect by Opposite Party No.1 and gross non- consideration of the stand taken by the Petitioner-Establishment to make the impugned order becomes bad.

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6. In his opposition Mr. Das, learned Senior Advocate appearing on behalf of Opposite Party No.1 taking this Court to the counter affidavit while attempting to challenge the entertainability of the Writ Petition, at the threshold contended that for there is working in terms of the contract being in a realm of private law, no Writ Petition should be entertained involving any action involving a contract. On the issue of taking out of the dealership Mr. Das, learned Senior Advocate attempted to take aid of decisions of the Hon9ble apex Court in the case of Indian Oil Corporation Ltd. Vrs. Amritsar Gas Company and others as reported in (1991) 1 SCC 533 and in the case of E. Venkatakrishna Vrs. Indian Oil Corporation and Anr. as reported in (2000) 7 SCC 764 and further in the case of M/s. Sanjana M. Wig Vrs. Hindustan Petro Corporation Ltd. as reported in AIR 2005 SC 3454. Mr. Das, learned Senior Advocate for Opposite Party No.1 contested the matter on the premises that once there is termination of a commercial contract, there is no question of restoration of such contract. Taking the plea through the provision at Section 14 of the Specific Relief Act, 1963 Mr. Das, learned Senior Advocate for Opposite Party No.1 contested this matter taking help of above law. While admitting that the MDG framed by the Government being approved by the Ministry of Petrol and Natural Gas is applicable to all Public Sector Oil Marketing Companies also claimed that the MDG, 2005 // 12 // is applicable since 1st August, 2005. It is contended that the MDG 2005 provides for taking punitive action against the dealers in case there is finding of irregularities / malpractice. It is claimed that for the coming into force of some amendment orders in 2007 giving a new dimension to the marker system to check adulteration of auto fuels, the MDG 2005 was further amended in 2007 with introduction of a new chapter 12 more particularly in introduction of blending of marker in potential adulteration. Copy of such amendment is at Annexure-B/1. Mr. Das, learned Senior Advocate also taking advantage of subsidy granted to kerosene claimed that kerosene is cheaply available, maintaining the adulteration in fuel becomes a challenge to have regular testing in order to maintain environment pure and as such, the Oil Companies have chosen the product / system (marker) after satisfying themselves with the efficacy of the same. The Oil Company pleaded to check the adulteration in auto fuels and the Government asked all Oil Marketing Companies (OMCs) to check the following steps containing the menace of adulteration :-

8. Answering to the allegations through Annexure-6 & 7, the Oil Company refuted the same and submitted that Opposite Party No.1 is conscious of observing principle of natural justice and therefore takes a lot of precautions before penalizing a dealer and a transporter. In response to the allegation at paragraph no.8 the Oil Company contended that there has been proper following of the procedure in MDG chapter. Mr.Das also claimed that there has been also appropriate collection of sample even in the collection of the sample from the nozzle of the dispensing unit. While contesting the allegation of the Petitioners, the Oil Company contended that there has been exaggerated story by the Petitioners only to mislead the Court and to draw sympathy. The Oil Company also alleged that in the event there was any flaw in the collection of the samples, the best course to the Petitioners would have been to report this aspect // 16 // immediately on the collection of the sample and claimed that the Petitioners9 complaint dated 8.06.2007 were after thought. It is also claimed that there was no mentioning of any adoption of wrong procedure even at the time of test on 7.06.2007. Taking this Court to the MDG 2005, Clause (XIII) at page- 38 of the brief it is claimed that an investigation against a retail outlet should be carried out especially by an external agency. It is also contended that there is no parallel investigation required to be carried out by an Official of the Oil Company. For Opposite Party No.2 is an authorized agent the Oil Company claims, there is no flaw in undertaking of the test through such agency. Through paragraph no.17, it is contended that there were three types of sampling procedure in undertaking the testing in the Quality Control Lab, Paradeep. For the deliberate attempt of the Petitioners to frustrate such testing and it is only after the cooperation of the Petitioners at a later stage the Quality Control Lab report was prepared. It is claimed that the Oil Company has been following three sampling procedures long before for undertaking the drastic steps. Taking to the agreement conditions it is claimed that in the first instance while supplying location, sample is retained by the supplying depot the dealer is required to keep the tank lorry sample of the product received jointly signed by the transporter of the dealer and the third sample is sample of retail outlet tank drawn by the // 17 // Inspecting Officials. It is claimed that it is only after the retail outlet the sample fails, the tank lorry and depot sample are tested and identified just to find the stage at which adulteration took place before taking the suitable action. It is claimed also that the procedure adopted is only with intention to protect the honest and innocent dealer. On the allegation in the Writ Petition it is further submitted that on response to the failure report of the marker test of the Petitioners9 retail outlet, in order to establish as to whether there is stage of adulteration / malpractice, the sample was redrawn by Opposite Party No.2 from the Petitioners9 retail outlet on 7.06.2007 and the tank lorry sample of the last supply made on 4.05.2007 to the Petitioners9 retail outlet being retained by the Petitioners as per the provision of the MDG, 2005 and the storage point sample of T.K. No.11 of Paradeep were tested in Quality Control Lab, that too in the presence of the authorized representative of the Petitioners. The transport operator and the Opposite Party No.2 further also with the Officials of the Corporation to establish the satisfaction of the authority the Oil Company filed the test report dated 7.6.2007 and 25.06.2007 vide Annexure-C/1 & D/1. It is through the aforesaid documents an attempt has been made to establish that the product in the Petitioners9 retail outlet has failed in the marker test and a case of adulteration was made out against the Petitioners. On the submission of show cause by the // 18 // Petitioners, the Oil Company claims that there has been threadbare consideration of the entire case and there has been a valid order vide Annexure-13. On the deposit of the Petitioners claimed to be pending at the end of the Oil Corporation during period of inspection, it is claimed that after the issue involved here is resolved, reconciliation of the account of the Petitioners will be refunded and the excess or in an alternative the Petitioners may be asked to pay. It is further claimed that despite service of notice upon the Petitioners to handover the position of the retail outlet there was delay in handing over with some pretext or otherwise creating a financial loss to the Corporation. It is, on the premises that the retail outlet is constructed on a leasehold land from one Ratnakar Satrusal for a period of thirty years commencing from 1.09.2001 at rental mentioned in the lease deed, Mr. Das, learned Senior Advocate for Opposite Party No.1 contended that the Company is at loss for non-utilization of the leasehold site. At the same time the Company is compelled to go on paying the lease rent to the lessors. On the premises that the Company has spent a huge amount of rupees fifty to sixty lakhs on the site development the Government Company is unable to utilize the site. Finally on the premises that there is no violation of the MDG, 2005 it is alleged that even in spite of order of this Court dated 10.01.2008 in W.P.(C) No.14091 of 2007 the Petitioners despite the dealership being terminated, // 19 // is not handing over the retail outlet thereby causing a lot of inconvenience to the general public while also causing financial loss to the public sector undertakings i.e. the Government Companies. Mr. Das, learned Senior Advocate in the above background of the matter taking this Court again to each of the pleadings of this Opposite Party attempted to contend that there has not only been scrupulous following of the MDG, 2005 but all care has also been taken in the conduct of the testing reports and it is only after the Petitioners failed in testing certificate in the undertaking of the exercise through the quality control test lab of the company, there has been issuing of Annexure-13. Mr. Das, learned Senior Advocate again taking this Court to a decision of this Court in the case of Amba Filing Station & Anr. Vrs. Union of India thru. Secr. Ministry of Petroleum & Ors. as reported in 2012 SCC Online All 143 and a further decision of this Court in the case of Kishore Auto Sales & Ors. Vrs. Bharat Petroleum Corporation Ltd. Varanasi & Ors., as reported in 2010 SCC Online All 1002 attempted to submit that there is support of law through the above judgment to the case of Opposite Party No.1- Company. In his attempt, to justify the order at Annexure-13 Mr. Das, learned Senior Advocate for Opposite Party No.1 submitted that there is no requirement of interfering in the impugned order.

 Automation of Retail Outlets  Third Party Certification of Retail Outlets  Monitoring of Movement of Tank Trucks through Global Positioning System (GPS)  Marker System in Kerosene // 24 //  Revising the Marketing Discipline Guidelines=

13. Plain reading of the aforesaid, this Court finds, the MDG, 2005 is an introduction by the Union of India as a check measure of adulteration and mal practice in the fuel supply to the general public. Further Union of India is bringing measures from time to time to check and control adulteration binding on the Parties and also applied herein This Court thus finds, once the agreement is not only meant to control the licensee and O.P.1 but there is also taking aid of the MDG, 2005 and instructions of Union of India in controlling the licence involved herein. There is action of O.P.1 vis-à-vis the MDG, 2005 and Union of India instructions from time to time. This Court also finds, there has been common reliance of particular provisions by both the Parties to the provision of the MDG, 2005. While one Party claiming Annexure-13 is an outcome in failure of exercise of certain provision of the MDG, 2005, the other Party claims, there has been absolute compliance of the provision of the MDG, 2005. This Court thus here finds, the Writ Petition is well maintainable and there involves public ailment, thus answers Question Nos.I & II accordingly.