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IN THE HIGH COURT OF CALCUTTA
PINAKI CHANDRA GHOSE And ASIM KUMAR RAY, JJ.
Ramesh Kejriwal & Ors.
Vs.
Union of India & Ors.
M.A.T. No. 1271 OF 2009, C.A.N. No. 10527 OF 2009
Decided on : 06.05.2011
MOTOR SPIRIT - MARKER TEST - AUTHORIZED OFFICER - ESSENTIAL COMMODITIES ACT, 1955 - MOTOR SPIRIT AND HIGH SPEED DIESEL (REGULATION OF SUPPLY, DISTRIBUTION AND PREVENTION OF MALPRACTICES) ORDER, 2005 - MARKETING DISCIPLINE GUIDELINES, 2005 - APPOINTMENT OF AGENT - VALIDITY - The Calcutta High Court held that the appointment of SGS Private Limited as an authorized agent of Bharat Petroleum Corporation Limited (BPCL) to conduct surprise inspections at retail outlets and collect samples for marker tests is valid and not illegal or arbitrary.
Fact of the Case:
The writ petitioner, a dealer of BPCL, challenged the suspension of its retail outlet's sales and supplies based on a marker test conducted by SGS Private Limited, an authorized representative of BPCL. The petitioner contended that SGS had no authority to collect samples and that the test was conducted in violation of the Essential Commodities Act, 1955, the Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) Order, 2005, and the Marketing Discipline Guidelines, 2005.
Finding of the Court:
The Court held that BPCL was justified in taking action against the petitioner based on the inspection and sample collection conducted by SGS. The Court found that the dealership agreement between the parties authorized BPCL to conduct surprise inspections and that SGS was an authorized agent of BPCL. The Court also held that the marker test system was introduced to prevent adulteration of motor spirit and diesel and that BPCL was duty-bound to ensure the supply of unadulterated products to its consumers.
Issues: 1. Whether the appointment of SGS Private Limited as an authorized agent of BPCL to conduct surprise inspections and collect samples for marker tests is valid. 2. Whether the marker test conducted by SGS was in violation of the Essential Commodities Act, 1955, the Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) Order, 2005, and the Marketing Discipline Guidelines, 2005.
Ratio Decidendi: 1. The Court held that the appointment of SGS Private Limited as an authorized agent of BPCL is valid and not illegal or arbitrary. The Court relied on the terms of the dealership agreement between the parties, which authorized BPCL to conduct surprise inspections and that SGS was an authorized agent of BPCL. 2. The Court held that the marker test conducted by SGS was not in violation of the Essential Commodities Act, 1955, the Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) Order, 2005, and the Marketing Discipline Guidelines, 2005. The Court found that the marker test system was introduced to prevent adulteration of motor spirit and diesel and that BPCL was duty-bound to ensure the supply of unadulterated products to its consumers.
Final Decision: The Court dismissed the writ petition and upheld the order of the single judge, which had dismissed the writ petition filed by the dealer challenging the suspension of its retail outlet's sales and supplies.
PINAKI CHANDRA GHOSE, J.: Instead of taking up the stay petition by consent of the parties, we take up the appeal.
2. This appeal is directed against an order and/or judgment dated 26th August 2009 whereby the Hon'ble Single Judge considered the issue with regard to the authority of the respondent No. 7, as an agent of the respondent corporation, to collect samples of motor spirit and high speed diesel from the retail outlet of the petitioners for marker test. Relying on a decision of Tarun Kr. Halder and Ors. Vs. State of West Bengal reported in 2009 (2) CHN page 689 His Lordship held that the point of law involved in the writ Petition being W.P. No. 1606 (W) of 2008 has already been decided in favour of the respondent corporation in the said decision and His Lordship was pleased to dismiss the writ Petition.
3. Being aggrieved this appeal has been preferred by the writ petitioner.
4. The facts of the case briefly are as follows:-
On 4th March, 1999, the writ petitioners entered into an agreement with the Bharat Petroleum Corporation Limited (hereinafter referred to as ‘BPCL’) for the purpose of running a retail outlet (commonly known as Petrol Pump). The writ petitioners obtained a licence under West Bengal Motor Spirit and High Speed Diesel (Licensing and Regulation of Supply) Order, 2000 for the said business. The writ petitioners as ‘dealer’ are governed by the provisions of the Essential Commodities Act, 1995 and the Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution Prevention of Malpractices) Order, 2005.
On 20th December, 2007 one Sri Prosenjit Dutta, representative of SGS (India) Private Limited being the respondent No. 7 herein, came to the said retail outlet of the petitioners and describing himself as a representative of said respondent No. 7 as an authorized person of SGS (India) Private Limited claimed that he has right to draw sample under the law. It is also represented that he would draw sample from the nozzle attached to the machine of the said same petrol pump. Thereafter, he drew three samples from the Pump Nozzle out of which first one was of Petrol and second and third was of Diesel and thereafter he handed over a copy of its analytical report of the said samples to the representatives of the petitioners. The said sample test is commonly known as TT Sample.
5. It is the case of the writ petitioners that the samples were drawn and without handing over one sample to the petitioners, the said agency prepared the report and left the said retail outlet of the petitioners. Thereafter on 20th December, 2007 an order was issued on behalf of the BPCL and the petitioners was informed that the said agency has carried out marker test at the said retail outlet of the petitioner. It was further informed on behalf of the BPCL that as per the marker test at the said retail outlet of the petitioner the alleged result was positive and, further the sales and supplies of all products of the BPCL from the said retail outlet of the petitioner was suspended.
6. On 20th December, 2007 the officers of the BPCL also sealed the tanks and nozzles of the petitioner’s said retail outlet. On 27th December 2007 the petitioners further received an order whereby writ petitioners was informed that the BPCL has scheduled for a further test of retail outlet / tank lorry sample at Budge Budge Laboratory on 28th December 2007 and the petitioners has been advised to remain present there at the time of testing of samples collected from his said retail outlet.
7. The petitioners has made a representation before the respondents concerned and prayed for withdrawal of the order of suspension of sales and supply of the product of the BPCL on the ground that SGS had no jurisdiction to do such marker test and the has been done in contravention of the guide line of the BPCL in cases of carrying out tests in the dealers outlet.
8. It is contended that the Central Government amended the Marketing Discipline Guidelines, 2005 (h
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