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2.The petitioner is a partnership firm and is the dealer of petroleum products of Hindustan Petroleum Corporation Limited. On 30.06.2008, the officials of the M/s.S.G.S.India Private Ltd., representative of the 2nd respondent, inspected the retail outlet of the petitioner and collected samples of petrol from the pump nozzle. Four samples were taken and it was tested with the test kit and out of the four samples, three samples passed in the marker test and only one sample taken from Nozzle No.05471536, by utilising IAS Column number 04239664 failed in the marker test as it turn into pink. Thereafter, on 01.07.2008 tank truck sample was taken and subjected to the marker test and tank truck sample passed in the marker test and therefore, show cause notice was issued by the 2nd respondent, dated 02.07.2008 stating all these facts that the failure of nozzle sample of power in the marker test tantamount to adulteration of petrol, which is violative of Clause Nos.27, 44 and liable for action under clause Nos.58(1) & 58(m) of the Special Agreement, dated 29.06.1980 and the petitioner was called upon to show cause why the dealership shall not be cancelled. The petitioner sent a reply, dated 10.07.2008 questioning the power of M/s.S.G.S.India Private Ltd., to take samples and also questioned the result of the test. The petitioner also challenged the taking of samples on 30.06.2008 by filing the Writ Petition No.6167 of 2008, on the file of this Court and also the proceedings of the 3rd respondent, dated 30.06.2008 suspending the sale of all the petroleum products in the petitioner's retail outlet. Earlier, another dealer was also issued similar show cause notice on the basis of the test conducted in that dealer outlet and that dealer viz., M/s.D.Nagarajan & Co., Rep by its Managing Partner, Villupuram, challenged the show cause notice issued against them in W.P.(MD)No.29561 of 2007. In that writ petition, they challenged the power of M/s.S.G.S. India Private Limited, the 4th respondent herein, to take sample and to conduct test and also the issuance show cause notice on the ground that the 3rd respondent has pre-determined the issue on the show cause notice and therefore, to quash the show cause notice in the writ petition No.29561 of 20097. That writ petition was allowed by the learned Judge holding that the 4th respondent herein viz., M/s.S.G.S India Private Limited, is not the authorised person to conduct the test as per the provision of Motor Spirit and High Speed Diesel (Regulation of Supply Distribution and Prevention of Malpractices) Amendment Order, 2007. Aggrieved by the same, M/s.Hindustan Petroleum Corporation Ltd., filed W.A.No.391 of 2008 and the Writ Petition No.6167 of 2008 filed by the petitioner herein, challenging the proceedings of the 2nd and 3rd respondents, was also taken along with the Writ Appeal No.391 of 2008 and both were heard together and the Honourable Division Bench of this Court, by order, dated 21.11.2008 dismissed the Writ Petition No.6167 of 2008 filed by the petitioner and allowed the appeal filed by the Hindustan Petroleum Corporation Limited in W.A.No.391 of 2008. Thereafter, the 2nd respondent, after considering the reply filed by the petitioner to the show cause notice, issued the order, dated 12.12.2008 terminating the dealership agreement of the petitioner and that order is challenged in this writ petition.

6.It is further stated in the counter that in order to eradicate the Adulteration of Petrol and Diesel with Kerosene, the Marker System was introduced. In the said Marker System, Kerosene is doped with the chemical called "Marker" before it is released in the market either under Public Distribution System or Industrial Use. The Patent owner and supplier of this Marker is M/s.Authentix, U.K, who supplies the Marker System to various countries across the globe. Under the Marker Test Programme, 5 parts per Million (PPM) of the Marker chemicals is blended with the Kerosene sold in India. Thus, PDS Kerosene available in India is blended with Marker. A special test kit has been approved by the Central Government and provided to officials conducting Marker Test. The kit contains buffer solution, plastic syringes, bottles and Immuno Assay System (IAS) columns. The IAS columns contains specially cultured resins which, when come into contact with the Marker Produces distinct pink colour. In this method, the sample of Petrol and Diesel collected from the retail outlet nozzle will be dropped into the IAS Column and if it turns to pink, it will prove that the product i.e. Petrol/Diesel is adulterated. Further, at the time of supplying petroleum products into the underground tanks of the retail outlet from the tank truck, two samples will be taken and one will be retained by the dealer and another will be given to the Tank Truck Driver. This is known as Tank truck Retention sample. To detect the adulteration, the Petroleum Company and its authorized representative M/s.S.G.S. India Private Limited will conduct surprise test at the petroleum outlets. If the petrol/diesel collected from the nozzle of the dispensing unit at the retail outlets turned pink, it will prove that the petrol/diesel is adulterated with Kerosene. To detect whether the adulteration was done by the dealer or by the transporter, the truck sample collected and retained by the dealer at the time of delivery before unloading the Petrol/Diesel in the underground tank will be tested by the marker test method. If the tank truck sample did not turn pink, it will conclusively prove that the adulteration was committed by dealer after delivery of the petroleum products to the dealer. On the other hand, if the tank truck sample also turned pink, it will prove that the dealer is innocent and the adulteration took place before deliver of the petrol to the underground tank.

7.The respondents 2 and 3 also narrated how the test was effected on 26.02.2008 in para 3 of the counter as follows :- "In the present case, on 30.06.2008, the official of M/s/.S.GS. India Pvt. Ltd., Representative of the HPCL, inspected the retail outlet of the petitioner and collected samples of Power (branded Petrol) from the pump nozzle, which was tested on 01.07.2008 and the Inspection/Test Report, dated 01.072008 has been signed by 1.Mr.B.Sampath and Mr.V.Thilagarajan of M/s.S.G.S. India Pvt. Ltd, 2. Mr.P.Sudalaimani, Depot Manager and Mr.E.Paul Murugan, Sales Officer of HPCL and Mr.K.Ramachandran representative of the petitioner dealer along with Mr.R,Marimuthu, Transporter and Mr.T.V.Bhaskar, Sale Officer and Mr.Hariprasad, Mobile Lab Officer. The Power collected from the Pump Nozzle as stated above when tested under the Marker system, turned into Pink Colour. Since the samples of Power collected and tested failed under the Marker Test, another set of samples were collected from the retail outlet pump nozzle. The samples so collected from the retail outlet pump nozzle and the tank truck retention sample, which was available at the retail outlet were tested once again under Marker system. Even in the second test also, the samples collected from the nozzle turned "Pink" while the tank truck retention sample passed. While the nozzle sample failed in the Marker Test as stated herein above, the Tank truck samples did not turn "Pink" thereby it was proved that the power which was being supplied to the consuming public by the dispensing pump was adulterated by the dealer. Therefore, a show cause notice was issued on 02.07.2008 and the same was challenged in W.P.(MD)No.6167 of 2008 and that writ petition was also dismissed and thereafter, final order was passed on 21.11.2008. It is further stated in para 7 of the counter that as per the terms of agreement the Corporation or its agents are entitled to enter the premises and inspect the management of the retail outlet. In the routine course, sample was tested for adulteration under the marker test which resulted positive proving presence of marker in the product which denotes adulteration of product power with SKO. As the sample failed, the sale and supplies were suspended and the test was conducted as per the procedure and the failure of nozzle sample of power in the marker test tantamount to adulteration of product, which is violative of clause Nos.27, 44 and liable for action under Clause Nos.58(1) & 58(m) of the agreement, dated 29.06.1980."

8.It is further stated that the marker test was introduced in 2005 and the marker test was dis-continued not for the reasons stated by the petitioner, but on the basis of the report of the Technical Committee and the discontinuation of marker system is temporary in nature pending selection of new supplier for marker as the existing contract with the present contract namely, M/s.Authentix has expired and also to test advanced technology to prevent adulteration in auto fuels. It is, therefore, stated that the action was taken as per the guidelines of the Ministry, which is prevalent at the relevant period and as the petitioner violated the terms of agreement and the sample also failed in the marker test, it is proved that the petitioner has adulterated, which is violative of terms of agreement and hence, action was taken in accordance with law and therefore, it is liable to be dismissed.