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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.

5(b). According to the learned senior counsel, when that is the procedure, which has to be followed scrupulously, the respondent has resorted to marker test by a third party, viz., M/s.SGS India Private Limited which has no connection with the respondent at all and there is no possibility for the respondent to delegate its powers to such an agency under the law and therefore, the entire procedure is not in accordance with the guidelines issued by the respondent. He would submit that even if the subsequent amendment is applied, SGS India Private Limited which is not connected with the respondent, has no right whatsoever to take any sample and therefore, the process is totally unsustainable. He would also submit that such a delegation which is not permissible is bad in law. He would rely upon the judgement reported in State of M.P. v. Bhupendra Singh (2000 (1) CTC 554) to substantiate his contention that the delegation is not valid and under section 3 of the Essential Commodities Act, the Control Order passed by the Central Government has to specifically confer authority on the concerned officer and inasmuch as SGS India Private Limited is not an authority contemplated under the law as well as the guidelines issued by the Government of India, such samples taken by SGS India Private Limited cannot be held to be valid.

6(b). According to the learned counsel for the respondent, SGS India Private Limited is a business partner of the respondent and it is the supplier of markers, which is a chemical, throughout the world, specifically approved by the Government of India and the duty of SGS India Private Limited is to make inspection since large number of petrol bunks are in operations, the respondent is not in a position to carry out inspection by itself. His further submission is that whenever SGS India Private Limited takes a preliminary inspection and in the marker test, if samples are found to be positive, then, the procedure of taking samples and inspecting in the presence of concerned dealer will be followed on the same day.

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.