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Showing contexts for: hpcl in M/S.Hindustan Petroleum Corporation ... vs Geetha Kasturirangan on 11 March, 2010Matching Fragments
N. PAUL VASANTHAKUMAR, J.
Both these writ appeals are preferred by the Hindustan Petroleum Corporation Limited (hereinafter called 'HPCL') challenging the common order of the learned single Judge made in W.P.Nos.3914 and 28696 of 2007 dated 11.9.2008 respectively, wherein the learned single Judge allowed the writ petition filed by the Retail Dealer in Petroleum products, who is the writ petitioner in W.P.No.28696 of 2007; and forbearing the Corporation from carrying on retail trade in petroleum products from the premises comprised in D.No.90B, Bhavani Main Road, Bhavani, or in any manner entering upon the said land in the writ petition filed by the wife of the Retail Dealer, who is the petitioner in W.P.No.3914 of 2007.
2. Both the writ petitioners are husband and wife. The land belongs to the wife and the husband is the Retail Dealer in petroleum products.
3. The Retail Dealer was granted dealership in petroleum products in the above said premises for the past five decades. Originally the Dealership Agreement was with ESSO and after merger of ESSO with HPCL, the dealership continued with HPCL.
4. On 15.11.2006, the Regional Manager, HPCL, Coimbatore issued a show cause notice based on an inspection made by the Mobile Lab Officer on 21.8.2006, in which sample was taken and sent to the laboratory of the HPCL alleging that it was found that the Retail Dealer failed positively in 'Octane Number Test'. On 21.8.2006 it was the same officer, who had taken the test sample, after conducting the test of the same sample, certified that the sample met the specification. Based on the said test report, the Retail Dealer replied to the show cause notice on 20.11.2006 stating that the whole stock was received on 10.8.2006 and therefore the alleged variation found in the inspection report was incorrect as there cannot be two different results in respect of the same sample. It is also stated by the Retail Dealer that at the time of inspection, he was not present and no sample was given to the Retail Dealer and on many occasions when tests were conducted, it was found that there was no adulteration.
7. The said writ petitions were opposed by the HPCL mainly on the ground that even if the termination is bad on any reason, the Dealer has got a remedy for arbitration and without resorting to the said remedy, the writ petition filed under Article 226 of the Constitution of India is not maintainable. It is also contended that the husband, having been given dealership of retail outlet, the materials of the Corporation are available in the outlet and even though the said land belongs to the wife of the Retail Dealer, the dealership agreement granted in favour of the husband having been terminated, the Corporation is entitled to get back the materials, which are available in the land of the wife and therefore the writ petition filed by the husband challenging the order terminating the retail dealership and the writ petition filed by the wife of the Retail Dealer are liable to be dismissed.
9. The main contention raised by the learned counsel for the HPCL is that the learned single Judge ought not to have entertained the writ petition, challenging the order cancelling the retail dealership dated 31.1.2007 as there is an effective alternate remedy to redress the grievances of the dealer by invoking the arbitration Clause 68 of the Dealership Agreement and therefore the learned single Judge is not justified in entertaining the writ petition and allowing the same. On merits the learned counsel for the HPCL submitted that Clause 8(4) of the Central Order directing to send the samples within ten days is only directory and not mandatory and clause 2.5.1 of the Marketing Discipline Guidelines, 2005 clearly clarifies that the purpose of maintaining time frame for various activities, for example sending sample to the Laboratory, preferably within ten days, is to streamline the system and therefore the learned single Judge was not justified in quashing the order of termination dated 31.1.2007 on the ground of not following the time schedule mentioned in clause 8(4) of the Central Order. The learned Counsel also cited various judgments in support of his contention that when there is an effective alternative remedy available, the writ petition filed under Article 226 of the Constitution of India is normally not entertainable and the petitioner is having effective remedy to go before the Arbitrator in terms of Clause 68 of the agreement.