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Judgment
Sudhanshu Dhulia, J.
The petitioner had a retail outlet dealership for petrol and diesel from Bharat Petroleum Corporation Limited. According to the petitioner, the dealership was initially with her husband, which was being run since 1970. On 10.07.2013, a surprise inspection was made at the dealership retail outlet of the petitioner and the samples of petrol and diesel were inspected. There were three tanks in the retail outlet dealership premises. One tank is for diesel with the capacity of 45,000 litres and there were other two tanks for petrol, one having a capacity of 10,000 litres and 20,000 litres respectively. For the sake of convenience petrol tank having a capacity of 10,000 litres would be referred as 'Tank A' and petrol tank having a capacity of 20,000 litres as 'Tank B' respectively. The date chart as given by the petitioner is as follows:-
Date of drawal of sample
Date of receipt of sample by laboratory
Date of analysist/testing
Date of report
Date of receipt by Retail outlet/petitioner
Delay, if any
Factual
10.07.2013
20.07.2013
22.07.2013
13.08.2013
08.10.2013
The learned counsel for the petitioner, however, contends that as per the MS & HSD Order of 2005, the sample report should have been received by the petitioner by August 9, 2013, whereas it was received on October, 10, 2013. Hence there is a delay of 60 days.
Learned counsel for the petitioner would then rely upon Section 20 of the Petroleum Act, 1934 (from hereinafter referred to as the "Act"), which reads as under:-
"Section 20. Right to require re-test.- (1) The owner of any petroleum, or his agent, who is dissatisfied with the result of the test of the petroleum may, within seven days from the date on which he received intimation of the result of the test, apply to the officer empowered under section 14 to have fresh samples of the petroleum taken and tested.
(2) On such application and on payment of the prescribed fee, fresh samples of the petroleum shall be taken in the presence of such owner or agent or person deputed by him, and shall be tested in the presence of such owner or agent or person deputed by him.
(3) If, on such re-test, it appears that the original test was erroneous, the testing officer shall cancel the original certificate granted under section 19, shall make out a fresh certificate, and shall furnish the owner of the petroleum, or his agent, with a certified copy thereof, free of charge."
As per sub-section (1) of Section 20 of the Act, inter alia, owner of any petroleum, or his agent, who is dissatisfied with the result of the test of petroleum may, can within seven days from the date on which he received intimation of the result of the test, apply to the officer empowered under section 14 to have fresh samples of the petroleum taken to be tested again. Section 14 of the Act refers to inspection and sampling of petroleum, which reads as under:-
"Section 14. Inspection and sampling of petroleum.- (1) The Central Government may, by notification in the Official Gazette, authorize any officer by name or by virtue of office to enter any place where petroleum is being imported, transported, stored, produced, refined or blended and to inspect and take samples for testing of any petroleum found therein.
(2) The Central Government may make rules-
(a) regulating the taking of samples of petroleum for testing,
(b)determining the cases in which payment shall be made for the value of samples taken, and the mode of payment, and
(c) generally, regulating the procedure of officers exercising powers under this section."
A perusal of the aforesaid two provisions shows that the entire case of the petitioner moves on the argument that the petitioner had a statutory right for seeking a retest of the petroleum product which in this case was petrol, but effectively, he has been debarred from exercising this right, as the report itself was given to the petitioner after a delay of 60 days, and as the petrol which was tested and sent for laboratory report was a petroleum product mixed with Ethanol, it could not be tested, as motor spirit mixed with Ethanol has a shelf life of only 90 days. As the report was given to the petitioner on 08.10.2013, when the period of 90 days had already expired, therefore effectively the statutory remedy as given under Section 20 of the Act was not available to the petitioner and this right got frustrated.
This is apparently an attractive argument, but is rebutted by the respondent Oil Company who submits that this argument has been raised for the first time in appeal which was filed by the petitioner in November, 2017. It has further been stated that the show cause notice after the lab report was received by the petitioner in which the product, of which sample was taken, was found to be adulterated. Then a show cause notice was given to the petitioner suspending her licence. The petitioner in reply to the show cause notice made a point by point rebuttal, but never raised this point. In the reply given by the petitioner on 18.10.2013, it has nowhere been stated that the petitioner has got a statutory right of retesting under Section 20 of the Act and the same has been frustrated because of the delay in supply of the lab report. In fact this is the third writ petition of the petitioner before this Court. The first writ petition filed by the petitioner was WPMS No. 2677 of 2013 which was against a show cause notice, in which initially a stay order was granted by a learned Single Judge of this Court on 19.11.2013, but thereafter it was disposed of by another learned Single Judge of this Court vide order dated 23.08.2017 by passing the following order:-
"Mr. Aditya Singh, Advocate, holding brief of Ms. Indu Sharma, Advocate for the petitioner.
Mr. P.K. Chauhan, Advocate for the respondent. The petitioner was issued show cause notice vide letter dated 03.10.2013. The petitioner filed a reply to the show cause notice dated 03.10.2013. By way of impugned notice, the supply of the petitioner was also suspended.
Accordingly, the writ petition is disposed of with the direction to the respondents to decide the case of the petitioner within a period of six weeks from today by passing speaking/detailed order and also by taking into consideration all the contents of the reply dated 18.10.2013. Till then, supply of the petitioner shall not be disturbed."
After the licence of the petitioner was terminated, she filed the writ petition being WPMS No.2813 of 2017, which was disposed of by this Court on 26.02.2018 on consideration of the fact that the petitioner had also filed a statutory appeal against the order whereby her licence was terminated. Now the statutory appeal of the petitioner has also been dismissed vide order dated 24.05.2018 by the appellate authority. Petitioner has challenged the order of the appellate authority as well as initial order of termination of her licence in the present writ petition.
In none of the two earlier writ petitions, or at any point earlier, did the petitioner raise the point that due to the delay in submitting the report, the statutory right of the petitioner under Section 20 of the Act got frustrated.
The main ground of the petitioner here is that statutory remedy available to the petitioner was frustrated. However, as we have already referred above, this ground was never taken by the petitioner earlier. For the first time, she has taken this ground in appeal before the appellate authority. To this, the finding given by the appellate authority is as follows:-
"(ii) I find that the appellant's contention that the timelines prescribed under Marketing Discipline Guidelines for providing test results to the appellant, were not followed is misconceived. In the instant case, the inspection was done on 10.07.2013, samples were received by lab on 20.07.13 (within 10 days), samples were analyzed on 22.07.2013 (within 25 days) and copy of the same was provided to Shri Rakesh Batra (since deceased), when show cause notice dated 03.10.2013 was issued. The appellant has referred to timelines given in the MDG to show that the timelines were mandatory in nature. I observe that the timelines given in Marketing Discipline Guidelines are only preferred period of timelines for sample collection, testing and for supply of report. Further, the appellant is not contending and/or said anything that due to late receipt of report by her, her cause is prejudiced and her case weakened. I observe that there was no delay in sending and testing of Motor Spirit product at the Laboratory and test result was communicated to the appellant along with the show cause notice and thus, was supplied after some delay, which in my view and as observed earlier, does not prejudice the appellant in any manner."
There are two questions. Firstly, whether the timeline was mandatory and secondly what benefit can be given to the petitioner if this timeline has been violated.
Guidelines have been issued under Section 3 of the Essential Commodities Act, 1955 by an order made by the Ministry of Petroleum and Natural Gas known as the Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) Order, 2005.
Learned counsel for the petitioner would rely upon sub-clause (4), (5) and (6) of Clause 8 of the order of the Ministry of Petroleum and Natural Gas, which read as under:-
"(4) The authorized officer shall forward the sample of the product taken within ten days to any of the laboratories mentioned in Schedule III or to any other such laboratory when it may be notified by the Government in the Official Gazette for this purpose, for analyzing with a view to checking whether the density and other parameters of the product conform to the requirements of Bureau of Indian Standard specifications number IS 2796 and IS 1460 for motor spirit and high speed diesel respectively.
(5) The laboratory mentioned in sub-clause (4) shall furnish the test report to the authorised officer within twenty days of receipt of sample at the laboratory.
(6) The authorised officer shall communicate the test result to the dealer or transporter or concerned person and the oil company, as the case may be, within five days of receipt of test results from the laboratory for appropriate action."
Learned counsel for the petitioner would then argue that there was a specific period given within which a laboratory shall furnish the test report to the authorised officer i.e. within twenty days and thereafter the authorised officer shall communicate the test result to the dealer within five days of receipt of test results from the laboratory, which according to the petitioner has been violated.
Even if it is presumed for the sake of argument that the guidelines were mandatory, and the period prescribed was not directory as has been held by the appellate authority, the fact still remains that the so called prejudice caused to the petitioner was never explained by her to the concerned authority, at the relevant point of time. According to the petitioner, there is delay of 60 days and the shelf life of the product was only 90 days, and the report was effectively given to the petitioner after 90 days. Therefore it was meaningless to raise the demand of a second test of the sample under Section 20 of the Act.
It is also necessary to note that as to the so called "shelf life", the petitioner relies upon British Petroleum reports and other scientific journals, the authenticity of which was never examined at any level. Even if these reports are presumed to be correct, the fact is that the petitioner should have raised this plea at the first given instance when she had received the report and at least when she had received a show cause notice, which admittedly she has not done. This plea that she had a right for a second test under Section 20 of the Act, and the right getting frustrated as the petroleum cannot be tested again was raised by the petitioner for the first time in an appeal after a period of more than four years. Therefore, no benefit of this plea can be given to the petitioner.
There are other hyper technical objections raised by the petitioner at this stage such as the details of lorry tank, etc not being mentioned in the report. The Court will not go into this aspect. All this Court has to see is whether the procedure adopted by the authority for cancellation of the licence of the petitioner was a fair procedure or not. Petitioner has been given a fair hearing at every stage, and the licence has been cancelled as per the Rules. The reason being that the petitioner was selling adulterated motor spirit. This being the situation, no interference is called for in the writ petition.
In view of the above observations, the writ petition fails and it is hereby dismissed.