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IN THE HIGH COURT OF MADHYA PRADESH
Sushrut Arvind Dharmadhikari and Duppala Venkata Ramana, JJ.
Kanhaiyalal and Company (A Proprietorship Firm) Through Its Proprietor Smt. Kiran Mundra (M/s.) v. Indian Oil Corporation Limited & Others
Writ Appeal No. 1903 of 2023 (Indore): against the order dated 27.10.2023 passed in Writ Petition No. 22645/2022;
Decided on 14.8.2024
(1) Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 (M. P.) -- S. 2 (1) -- Constitution of India -- Arts. 226 and 227 --scope of judicial review -- Wednesbury principle of reasonableness and doctrine of proportionality elucidated. (1948) 1 KB 223 = (1947) 2 All ER 680 and (2011) 15 SCC 616 discussed. AIR 1955 SC 233, AIR 1955 SC 425, 1992 Supp. (2) SCC 312 and (2000) 6 SCC 698 referred to. [Paras 8 & 9]
(2) Agreement -- dealership of petroleum products -- terminated on account of tampering of seals and dispensing unit – held – such extreme action is liable to be taken only when alleged tampering of dispensing unit impacts delivery of product -- purpose of Market Disciplinary Guidelines (MDG) is to ensure that delivery of product to customers is accurate -- delivery not affected -- such tampering cannot constitute critical irregularity within MDG so as to warrant termination of dealership -- decision of termination cannot stand test of judicial scrutiny in light of principle of “Wednesbury Reasonableness” as no loss has been caused to customers, nor has any gain been caused to appellants -- such harsh decision is extremely irrational and arbitrary -- order of termination of dealership quashed. [Para 10]
(3) Legal Metrology Act, 2009 -- S. 15 -- allegation of tampering of seals and dispensing unit -- inspection not done in presence of Weights and Measures Officers -- it is statutory duty of Weights and Measures Officers to conduct inspections -- opinion of tampering cannot be obtained on basis of photographs without physical verification/inspection -- such procedure is extremely arbitrary and violative of Art. 14 of Constitution -- cannot be allowed to be adopted, especially when penal consequences ensue. [Para 11]
(4) Natural Justice -- termination of dealership -- in light of “official notice doctrine” petitioner had right to be communicated and to be granted opportunity to rebut comments which formed basis of termination order -- said comments neither supplied to petitioner, nor petitioner given opportunity to render explanation regarding same -- such procedure is certainly in violation of principles of natural justice and “official notice doctrine” -- termination order liable to be set aside on this ground alone. (2023) 8 SCC 35 followed. 2014 (16) SCC 248 and (2012) 2 SCC 196 referred to. [Para 12]
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¼2½ djkj & iSVªksy mRiknksa dk forj.kkf/kdkj & eqgjksa vkSj forj.k bdkb;ksa ls NsM+NkM+ ds dkj.k lekIr fd;k x;k & vfHkfu/kkZfjr & ,slh dM+h dkjZokbZ dsoy rc dh tkuk gksrh gS tc forj.k bdkb;ksa ls vfHkdfFkr NsM+NkM+ ls mRikn dk ifjnk; çHkkfor gks & cktkj vuq'kklu ekxZnf'kZdk ¼,eMhth½ dk ç;kstu ;g lqfuf'pr djuk gS fd xzkgd dks mRikn dk ifjnk; ,dne lgh gS & ifjnk; çHkkfor ugha & ,slh NsM+NkM+ ls ,eMhth ds vFkkaZrxZr ,slh egRoiw.kZ vfu;ferrk xfBr ugha gks ldrh ftlls forj.kkfèkdkj dh lekfIr okaNuh; gks & lekfIr dk fofu'p; ^^osUlcjh ;qfä;qärk** ds fl)kar ds çdk'k esa U;kf;d laoh{kk ds ijh{k.k ij [kjk ugha mrj ldrk D;ksafd xzkgdksa dks dksbZ gkfu ugha gqbZ] u vihykFkhZx.k dks dksbZ ykHk gh igq¡pk & ,slk dBksj fofu'p; vR;ar v;qfä;qä vkSj euekuk gS & forj.kkf/kdkj dh lekfIr dk vkns'k vfHk[kafMrA ¼iSjk 10½
¼3½ fof/kd ekifoKku vf/kfu;e] 2009 & /kkjk 15 & eqgjksa vkSj forj.k bdkb;ksa ls NsM+NkM+ dk vfHkdFku & ckV vkSj eki vf/kdkfj;ksa dh mifLFkfr esa fujh{k.k ugha fd;k x;k & fujh{k.k djuk ckV vkSj eki vf/kdkfj;ksa dk dkuwuh drZO; gS & NsM+NkM+ dh jk; HkkSfrd lR;kiu@fujh{k.k ds fcuk] Nk;kfp=ksa ds vkèkkj ij vfHkçkIr ugha dh tk ldrh & ,slh çfØ;k vR;ar euekuh vkSj lafoèkku ds vuqPNsn 14 dh vfrØked gS & vaxh—r djus ugha nh tk ldrh] fo'ks"kr% tc nkafMd ifj.kke Qfyr gksaA ¼iSjk 11½
¼4½ uSlfxZd U;k; & forj.kkf/kdkj dh lekfIr & ^^'kkldh; lwpuk fl)kar** ds vkyksd esa ;kph dks lalwfpr fd, tkus vkSj mu fVIif.k;ksa dk çR;k[;ku djus dk volj fn, tkus dk vf/kdkj Fkk tks lekfIr vkns'k dk vkèkkj cuha & mDr fVIif.k;‚a u rks ;kph dks çnk; dh xbZ] u ;kph dks muds laca/k esa Li"Vhdj.k nsus dk volj fn;k x;k & bl çfØ;k ls fuf'pr gh uSlfxZd U;k; ds fl)karksa vkSj ^^'kkldh; lwpuk fl)kar** dk vfrØe.k gksrk gS & lekfIr vkns'k dsoy bl vk/kkj ij gh vikLr fd, tkus ;ksX;A ¼2023½ 8 ,llhlh 35 vuqlfjrA 2014 ¼16½ ,llhlh 248 rFkk ¼2012½ 2 ,llhlh 196 fufnZ"VA ¼iSjk 12½
ORDER
Dharmadhikari, J. -- 1. Heard finally at motion stage with the consent of both the parties. The present intra Court appeal u/S 2(1) of M.P. Uccha Nyayalaya (Khand Nyaya Peeth Ko Appeal) Adhiniyam, 2005 assails the final order dated 27.10.2023 passed in W.P. No. 22645/2022 where by the writ petition filed by the appellant herein has been dismissed.
2. Brief undisputed facts giving rise to filing of the present writ appeal are as follows :--
(i) Appellant is a proprietorship firm who is engaged in the business of Retail Sales and Supply of Petroleum Products that is Motor Spirit (Petrol) and High Speed Diesel through its filling and service Station situated at Akodia Road, Shujalpur Mandi, Shujalpur, District-Shajapur (M.P) for the last 50 years and appellant has renewed his dealership with respondents and obtained dealership from the respondents vide Dealership Agreement dated 1.7.2019 for a period of 15 years i.e. up to 30.6.2034.
(ii) On 1.12.2018, Dispensing Units manufactured by GVR bearing No. 201302001387 and 201308000035 were installed by respondent No. 1 with petitioner’s aforesaid service station.
(iii) On 8.7.2021, Online complaint was uploaded by the petitioner on DU -Electronic Compliant Tracking System regarding dispensing unit No. 201308000035 complaining that there is a “point jump/meter reading jump”.
(iv) On 8.7.2021 itself, another online complaint was uploaded by the petitioner on DU - Electronic Compliant Tracking System regarding dispensing unit No. 201302001387 regarding “re-calibration.”.
(v) On 8.7.2021 itself, another online complaint was uploaded by the petitioner on DU -Electronic Compliant Tracking System regarding dispensing unit No. 201308000035 regarding “re-calibration.”.
(vi) On 9.7.2021, the complaint No. 1770549 pertaining to “point jump” w.r.t DU No. 201308000035 was attended by GVR Technician Mr. Indrajeet Singh.
(vii) On 14.7.2021, in pursuance of complaints dated 8.7.2021 pertaining to both dispensing unit No. 201302001387 and 201308000035 regarding re-calibration, re-calibration was carried out by the Inspector (W&M) in presence of petitioner, technician of GVR as also the competent officers of the IOCL.
(viii) On 11.4.2022, the Authorities of respondent No. 1 Indian Oil Corporation Limited visited the aforesaid Retail Outlet of Appellant and carried out the inspection of the Dispensing Units(Pumps) along with other services and record on the basis of authorization dated 11.4.2022 obtained by them from W & M Department, wherein three Dispensing Units (Pumps) were inspected i.e. having DU. SL No. 12 HC 0535V (Midco Make), 201302001387 (GVR-DU India Make) and 201308000035 (Gilbarco Make). As per inspection, W & M seals and totalizer seal of D.U No. 201302001387 were found intact but subjected to verification whereas with regards to Dispensing Unit No. 201308000035, the W & M seals were not found intact. It is not disputed that delivery of the aforesaid units was found correct. During inspection, coloured photographs of both the DU’s were taken.
(ix) After conducting inspection on 11.4.2022, certain parts of DU No. 2013078000035 and 201302001387 (10 in number) were seized for analysis by the original equipment manufacturer (OEM) i.e. M/s GVR.
(x) On 18.4.2022, M/s GVR opened the sealed boxes pertaining to both the DU’s in online presence of the petitioner’s representative.
(xi) On 28.4.2022, a letter was sent by Respondent No. 1 IOCL to Inspector (W & M), Shajapur alongwith original seal of CPU of DU No. 201302001387 and photograph of display card of DU No. 2013078000035 was printed in the letter seeking his opinion upon which on 18.05.2022, Inspector (W & M), Shajapur opined that W & M Seal on CPU card was tampered and it was opined that permission for removal of seal of main display card on DU No. 2013078000035 was never given by the office of W & M to the petitioner.
(xii) On 18.5.2022, Analysis report of OEM – M/s GVR was issued showing that the DUs were found to be manipul
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