ORDER :

1. This writ petition has been filed by Narsai Highway Filling Station represented by its proprietor S.M. Sushil Kumar with a prayer to issue writ, order or direction declaring the action of the respondent in relying upon the Test Report dated 22-6-2005 and directing the petitioner to stop the sales as illegal, arbitrary and in violation of Petroleum Rules, 2002 and Motor Spirit and High Speed Diesel (Prevention of Malpractices in Supply and Distribution) Order 1990 and amendment Order 1993.

2. The proprietor of the petitioner Oil Filling Station has given his sworn affidavit in support of the writ petitioner. The case of the writ petitioner as set out in the affidavit be summarized, in brief, is as follows: The petitioner is a dealer of respondent company pertaining to MS, HSD and Lubricant Oils. The Mobile Lab of the respondent Corporation visited the petitioner Petrol Bunk on 22-6-2005 and collected sample of High Speed Diesel for testing. The Mobile Test Report shows that the sample does not meet the specification WRT density and Kinematic Viscosity @ 40 decrees centigrade. The Testing Officer has not conducted the test as contemplated in Rule 193 of the Petroleum Rules, 2002 and therefore, the test report cannot be a basis for initiating any proceedings against the petitioner. A specific assertion has been made in the writ affidavit that the test report based on examination of single sample is not in accordance with the Chapater X of Petroleum Rules, 2002 and thus its reports cannot be a basis for initiating further proceedings against the petitioner.

3. The respondent filed counter-affidavit. One KMVS Raju has sworn to the counter-affidavit. It is stated in the counter-affidavit that the writ petition is premature as no action has been so far initiated and show-cause notice has not been issued to the petitioner, basing on the findings on the test report dated 22-6-2005. As per the Marketing Discipline Guidelines, 2001 failure of the sample of the petroleum product in respect of density empowers the Corporation to immediately suspend the sales at the outlet. The action of suspension of sales is not punitive measure, but is intended for the protection of the customers, otherwise the customers buy contaminated petroleum products if the outlet is allowed to function normally. The Petroleum Rules, 2002 is not applicable with regard to drawing of samples for testing by Mobile Laboratories. Annexure III of the Marketing Discipline Guidelines, 2001 stipulates procedure for sample collection and testing of the sample drawn from retail outlet. Clause 4 of the said annexure deals with the procedure to be followed with regard to drawing of samples by Mobile Laboratories. The said clause stipulates that in case of HSD, three 1 liter samples for each of the concerned tanks has to be drawn in the event the product fails the clinical tests. In the present case, the Mobile Lab visited the petitioner retail outlet on 22-6-2005 and HSD sample drawn from tank I was found deficient in respect of density at 15 degrees centigrade and kinematic viscosity at 40 degrees centigrade. These findings are reflected in the Test Report bearing No. ML/HSD/373, dated 22-6-2005. In view of the failure of the sample in respect of these clinical tests, the Sampling Officer drew three 1 liter samples of HSD in accordance with the stipulated procedure in the presence of the petitioner's representative, who also signed the sample labels in the capacity of a witness. Out of the three samples of HSD which were drawn as prescribed, one sample was handed over to the dealer, the other two were handed over to the concerned Sales Officer of the Corporation for necessary further testing/retention as stipulated in the Marketing Discipline Guidelines, 2001. The samples drawn on the location were tested strictly as per procedures laid down in BIS Test Methods. The tests referred to by the petitioner viz. P20 and P21 of IS 1448 are the tests methods for Flash Point Te