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The writ petition is filed challenging the show-cause notice issued by the respondent dated 1.9.2007 by which the petitioner is directed to show-cause as to why action including the termination of dealership agreement cannot be taken against the petitioner in accordance with clauses 55(I) and (K) for violation of clauses 26 and 42 of the dealership agreement by giving 7 days' time to the petitioner.

2. The petitioner company was appointed as a dealer for sale of petroleum products of the respondent Corporation from 1962 and an agreement was entered into subsequently on 1.6.1981. On 14.8.2007, an inspection was conducted in the retail outlet of the petitioner by M/s.SGS India Private Limited and on test of sample, it was observed that nozzle sample of both MS & HSD have failed in the Marker Test as they were found to have turned into pink. Thereafter, the nozzle samples of MS/HSD in Marker Test and the Tank Truck Retention samples and nozzle samples were collected from the outlet jointly by SGS and the respondent on the same day and sent for Joint Test. In the Joint Marker Test conducted on 17.8.2007, it was observed that MS and HSD drawn from the outlet failed in the Marker Test while the Tank Truck Retention Samples stood passed the said test. Copies of the Joint Test Reports were also handed over to the petitioner. According to the petitioner, since the nozzle samples and Tank Truck Retention Samples resulted in variations, the samples should got tested as per the Marketing Discipline Guidelines as per Three Tier Sampling system. The said method is provided in clause 2.4.4 of the Guidelines. The complaint of the petitioner is that without following the said guidelines and procedure, the impugned show-cause notice was issued by the respondent having coming to the premeditated conclusion that the petitioner has altered MS and HSD and therefore, the show-cause notice is only an empty formality.

4(a). It is the case of the respondent that on 14.8.2007 the authorised agent of the respondent viz., M/s.SGS India Private Limited conducted the Marker Test at petitioner's retail outlet by taking nozzle samples of both MS and HSD from dispensing pump on both tanks 1 and 2. The Marker Test showed that MS and HSD turned pink. On the same day, viz., 14.8.2007 after prima facie finding by M/s.SGS India Private Limited as stated above in the Marker Test, second nozzle samples of MS and HSD together with Tank Truck Retention (TTR) sample were taken from the petitioner and handed over to the respondent's official who sent them to supply location for the Joint Marker Test. The Joint Marker Test was done on 17.8.2007 in the presence of the representatives of the petitioner, respondent and SGS India Private Limited apart from the transporter. The result was that the nozzle samples again failed and turned pink. However, the Tank Truck Retention sample has passed the test. Therefore, according to the respondent, it is a proven case of adulteration.

4(b). According to the respondent, clause 2.4.4 of the MDG is not applicable. That clause is applicable to the test done by the Mobile Lab, whereas, in the present case the Marker Test was performed by the authorised agent as per the amended guidelines dated 15.1.2007 issued by the Ministry of Petroleum and Natural Gas, Government of India. The Government of India have introduced Chapter 12 by amending the Marketing Discipline Guidelines, 2005 dated 15.1.2007. By the said amendment the Government has decided to implement the blending of marker in potential adulterations to prevent adulteration of petrol and diesel. Therefore, a special procedure was contemplated and with that view, the amendment was effected. The Marker Test can be done at any time at any retail outlet and if the test fails, TTR sample retained by the dealer will also be tested in the presence of marker. If the Marker Test of TTR sample fails, then no action will be taken against the dealer since the responsibility will become that of the carrier. If the Marker Test of TTR samples passes, action will be taken against the retail outlet dealer since it is a proven case of adulteration with kerosene.

6(c). He would submit that as per clause 42 of the Dealership Agreement, all actions taken by the respondent are binding upon the petitioner. He would also rely upon clause 55(H) and (I) to substantiate his contention. His contention is that it is only a show-cause notice and the writ petition is not maintainable. His submission is that the decision of SGS India Private Limited is not a final conclusion and it is only a basis for further test that can be made by giving samples to the dealer and therefore, the dealer's interest is protected. In the present case, the first marker test was done by the SGS India Private Limited on 14.8.2007 and immediately on finding that the marker test was positive, samples were taken and the same were given to the petitioner/dealer also and other samples were sent for test and the test was done in the presence of representatives of the petitioner as well as the carrier apart from the respondent and SGS India Private Limited. He would heavily rely upon the amendment introduced to the guidelines which are statutory in nature and submit that the respondent has only acted as per the amendment since as per the contract entered into between the petitioner and the respondent, the petitioner is bound by any other amendment which are introduced subsequently to the Marketing Discipline Guidelines.