Judgement P.C.: Heard Sri Alok Singh, learned Senior Counsel assisted by Sri Ram Ji Srivastava, leamed counsel for the petitioners and Sri Vipul Sharma, learned counsel for the respondents. 2. The present writ petition has been filed challenging the order of cancellation of retail outlet dealership Agreement executed between the petitioners and respondents passed by General Manager, Indian Oil Corporation Ltd., Kapoorthala Complex/respondent no.2 vide its order dated 27-02-2006 (annexure no. 16 to the writ petition). 3. Brief facts, as narrated in the writ petition, are that the petitioner's firm was established for sale and supply of petroleum products. Several Agreements were executed between the petitioners and Indian Oil Corporation Ltd. time to time. The last dealership Agreement was executed on 28-01-2002 between the parties by which a retail outlet dealership was assigned to the petitioner, through which the petitioner started sale of petrol and diesel from his outlet firm. It is significant to quote the termination order, which reads as follows :- "Sub: Termination of retail outlet dealership M/s Singh Filling Station Kathgodam, Distt. Nainital : You have been operating as our RO dealer at Kathgodam, Distt. Nainital in the name and style of M/s Singh Filling Station on the terms and conditions, contained in our standard dealership Agreement dated 28-01-2002, executed between yourself and M/s Indian Oil Corporation Ltd. The dealership was awarded to you under open category. A show cause notice dated 17-12-2005 was issued to you seeking your reply within 30 days time. However, your delayed reply was received on 30-01-2006, vide your letter dated 2501-2006. We have fully considered your reply to the show cause notice as referred herein above. The following mal-practiceslirregularities were observed as stated in our above referred show cause notice. (1) Your RO was inspected on 18-06-2004 and sample of HSD were drawn on account of density variation. The samples failed in lab test and RO was closed for a period of one month. (2) An explanation was called, vide letter dated 19-01-2004, under the clause 9 of the dealership Agreement, but you failed to reply the said letter. (3) An explanation was called again, vide our letter dated 20-05-2005 under the clause 9 of the dealership Agreement. This letter was also not replied by you. (2) An explanation was called, vide letter dated 19-01-2004, under the clause 9 of the dealership Agreement, but you failed to reply the said letter. (3) An explanation was called again, vide our letter dated 20-05-2005 under the clause 9 of the dealership Agreement. This letter was also not replied by you. (4) A letter dated 28-09-2005 was issued to you under clause 8 of the dealership Agreement and again you have decided not to reply this letter too. (5) The RO is being kept dry since 29-09-2005. You have stated in your reply that you have replied all the letters, through sales Manager to the Corporation. You have also stated that due to your internal family problems, you could not take the supplies properly. We have considered your reply dated 25-01-2006 and the same has been found unsatisfactory. Therefore, in line with clause no. 56 (a) of the dealership Agreement, executed between you and M/s Indian Oil Corporation Ltd. on 28-01-2002, the RO dealership is terminated with immediate effect. This is, however, without prejudice to our other rights and contentions in the matter." 4. The petitioners were given opportunities by issuing show cause notice the last notice is of dated 17-12-2005 before cancellation of the dealership requiring them to show cause within 30 days as to why action including termination of dealership should not be taken. The contentions of the show cause notice dated 17-12-2005 are as follows: "Sub. : Show Cause Notice: Dear Sir, You have been operating as our RO dealer at Kathgodam, Distt. Nainital in. the name and style of M/s Singh Filling Station on the terms and conditions of the dealership Agreement dated 28 January 2002. The said dealership was awarded to you under "Open" Category. During past 3 years your sales performance is below the desired level and showing declining trend each year. Your sales figure is much below than the average of other Ros in your trading area. During the inspections of your dealership, following irregularities/malpractices were observed : (1) Your RO was inspected on 18-06-2004 and sample of HSD were drawn on account of density variation. The samples failed in lab test and RO was closed for a period of one month. (2) An explanation was called, vide letter dated 19-01-2004, under the clause 9 of the dealership Agreement, but you failed to reply the said letter. The samples failed in lab test and RO was closed for a period of one month. (2) An explanation was called, vide letter dated 19-01-2004, under the clause 9 of the dealership Agreement, but you failed to reply the said letter. (3) An explanation was called again, vide our letter dated 20-05-2005 under the clause 9 of the dealership Agreement. This letter was also not replied by you. (4) A letter dated 28-09-2005 was issued to you under clause 8 of the dealership Agreement and again you have decided not to reply this letter too. (5) The RO is being kept dry since 29-09-2005. Thus you failed to comply with the terms and conditions of the Dealership Agreement (Clause-9). Under the above circumstances, we hereby call upon you to show cause within 30 days from the date of receipt of this notice as to why action including termination of your Dealership should not be taken against you in accordance with relevant clause of the Marketing Discipline Guidelines as stated herein above. In case, you fail to submit your reply within the stipulated time or the explanation given by you is not satisfactory, Corporation will forthwith terminate your Dealership Agreement without any further Notice to you, and/or take such further steps against you as deem fit in exercise of any of the rights of the Corporation under the Marketing Discipline Guidelines and/or under law. This is, however, without prejudice to our other rights and contentions in the matter. " 5. In the first reply dated 25-01-2006 of the show cause notice dated 17-12-2005 the petitioners have admitted that due to family problems which arose on account of the death of two partners, the petitioner could not lift the petrol and diesel supply and in future they will be capable to lift the required supply. Thereafter, the petitioners have filed a detailed reply on the same day which reads as under : "Subject: Reply to letter no. R/Bareilly/Singh/05 dated 17-12-05 Dear Sir, Kindly take reference of your show cause notice dated 17-12-05 which was received on 30-12-05. In reply to your show cause notice, I have to state that because of construction/ renovation work being carried our by the Corporation, sales had fallen down drastically, hence, density variation was found on 18-06-04 in the H.S.D. for which we have already been penalized by suspending the sales for one month. In reply to your show cause notice, I have to state that because of construction/ renovation work being carried our by the Corporation, sales had fallen down drastically, hence, density variation was found on 18-06-04 in the H.S.D. for which we have already been penalized by suspending the sales for one month. In reply to point no. 2, 3 & 4 we have to state that because of shifting of underground tank, construction of approach road, platform, building and public utility service are being carried out by the corporation in slow speed, we are controlling the R. O. while sitting in an open place and because of the construction activities, vehicles are not easily coming to dispensing units, hence, sale of product was fallen down drastically for which we have already submitted our explanation in the office of Sales Manager Sri Sachin Jain. In reply to clause no. 5, we have to submit that despite of submission of application and necessary documents on 29-03-05 for constitution of the firm, it was not finalized at your end, and because of various constructions, renovation activities being carried out by the corporation at the site, we could not lift desired quantity of product arid thereafter, because of non issuance of diesel license by the district Supply Officer, we are not in a position to lift and sell H. S.D. In the above circumstances your good self is requested to revoke the letter dated 1712-2005 and further to permit reconstitution of the firm at the earliest and further to complete entire renovation/reconstruction work at the earliest so that we may restore sales target up to the satisfaction." 6. After considering the replies filed by the petitioners; the respondents found the replies to be unsatisfactory, therefore, the impugned order of term ination of the Agreement has been passed finally that there was violation of Clause IX of the Agreement, the petitioners failed to comply with the terms and conditions stipulated in Clause IX of the Agreement. 7. There is a clause specified in the Agreement executed between the parties that in case there arises any dispute, the decision of the Arbitrator would be binding in resolving the dispute. Since the petitioners have disputed the termination of the dealership, thus they could dispute it before the Arbitrator. 8. 7. There is a clause specified in the Agreement executed between the parties that in case there arises any dispute, the decision of the Arbitrator would be binding in resolving the dispute. Since the petitioners have disputed the termination of the dealership, thus they could dispute it before the Arbitrator. 8. Learned counsel for the petitioner relied upon para-7 of the Hon'ble Apex Court's judgment reported in 2003 (2) SCC Harbanslal Sahnia and ors. vs. Indian Oil Corpn. Ltd. and ors., page 107 which reads as under: "7. So far as the view taken by the High Court that the remedy by way of recourse of arbitration clause was available to the appellants and therefore the writ petition filed by the appellants was liable to be dismissed is concerned, suffice it to observe that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice: or (iii) where the orders of proceedings are wholly without jurisdiction or the vires of an Act is challenged. (See Whirlpool Corpn. Vs. Registrar of Trade Marks). The present case attracts applicability of the first two contingencies. Moreover, as noted, the petitioners dealership, which is their bread and butter, came to be terminated for an i"elevant and nonexistent cause. In such circumstances, we feel that the appellants should have been allowed relief by the High Court itself instead of driving them to the need of initiating arbitration proceedings. " 9. Here in the present case, none of the conditions and contingency mentioned in para-7 (i), (ii) & (iii) of the aforesaid verdict are attracted. No doubt, the bread and butter of the petitioners was dependant upon the earning from the retail outlet, but admittedly the petitioners' firm was merely a dealer and they were being paid commission on the sale of the petrol and diesel. Their status was of an agent only. By canceling the Agreement on account of noncompliance of Clause-IX of the Agreement, their agency has been terminated. Therefore, in our opinion no fundamental right of the petitioners is violated. 10. Their status was of an agent only. By canceling the Agreement on account of noncompliance of Clause-IX of the Agreement, their agency has been terminated. Therefore, in our opinion no fundamental right of the petitioners is violated. 10. So far as the contingency no. (ii) is concerned; we find that there appears no failure of principles of natural justice in as much as, the petitioners have been given show cause notices to which they have replied and after taking in to consideration, the impugned order of termination of the dealership has been passed, therefore, the facts of the case nowhere attract the ratio of the aforesaid judgment of Hon'ble the Apex Court. 11 . Learned counsel for the petitioners furthermore relied upon the judgment of Hon'ble the Supreme Court in Sanjana M. Wig (M/s) vs. Hindustan Petroleum Corpn. Ltd., reported in 2005 (8) SCC, page 242. Learned counsel for the petitioners relied upon para-13, which reads as under:"13. However, access to justice by way of public law remedy would not be denied when a lis involves public law character and when the forum chosen by the parties would not be in a position to grant appropriate relief. " 12. In the aforesaid judgment of Hon'ble the Supreme Court the cases of Titagarh Paper Mills Ltd. vs. Orissa SEB and Bisra Stone Lime Co. Ltd. vs. Orissa SEB SED have been referred. On the basis of these two judgment specifically in Titagarh's case the Hon'ble Apex Court has held that "the principal question which arises for consideration is as to whether a discretionary jurisdiction would be refused to be exercised solely on the ground of existence of an alternative remedy which is more efficacious. Ordinarily, when a dispute between the parties requires adjudication of disputed question of facts wherefore the parties are required to lead evidence both oral and documentary which can be determined by the domestic forum chosen by the parties, the Court may not entertain a writ application. " 13. In para-14 of the mentioned case, Hon'ble the Apex Court has referred the case of ABL International Ltd. vs. Export Credit Guarantee Corpn. of India Ltd. holding in para 28, the Hon'ble Apex Court has observed that in certain cases even a disputed question of fact can be gone into by a court entertaining a petition under Article 226 of the Constitution. of India Ltd. holding in para 28, the Hon'ble Apex Court has observed that in certain cases even a disputed question of fact can be gone into by a court entertaining a petition under Article 226 of the Constitution. Para 28 is reproduced as under : "28. However, while entertaining an objection as to the maintainability of a writ petition under Article 226 of the Constitution of India, the Court should bear in mind the fact that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. The Court has imposed upon itself certain restrictions in the exercise of this power. (See Whirlpool Corpn. v. Reaistrar of Trade Marks). And this plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14 or for other valid and legitimate reasons for which the Court thinks it necessary to exercise the said jurisdiction. " 14. In para-17 of the above judgment the Hon'ble Apex Court has held as under : "17. A three-judge Bench of this Court in Gujarat Ambuja Cement ltd. referring to Harbanslal Sahnia held: (SCC pp. 517-18, paras 22-23) 22(24)... There are two well recognised exceptions to the doctrine of exhaustion of statutory remedies. First is when the proceedings are taken before the forum under a provision of law which is ultra vires, it is open to a party aggrieved thereby to move the High Court for quashing the proceedings on the ground that they are incompetent without a party being obliged to wait until those proceedings run their full course. Secondly, the doctrine has no application when the impugned order has been made in violation of the principles of natural justice. We may add that where the proceedings itself are an abuse of process of law the High Court in an appropriate case can entertain a writ petition. 23(25). Secondly, the doctrine has no application when the impugned order has been made in violation of the principles of natural justice. We may add that where the proceedings itself are an abuse of process of law the High Court in an appropriate case can entertain a writ petition. 23(25). Where under a statute there is an allegation of infringement of fundamental rights or when on the undisputed facts are taxing authorities are shown to have assumed jurisdiction which they do not possess can be the grounds on which the writ petitions can be entertained. But normally, the High Court should not entertain writ petitions unless it is shown that there is something more in a case, something going to the root of jurisdiction of the officer, something which would show that it would be a case of palpable injustice to the writ petitioner to force him to adopt the remedies provided by the statute. " 15. Learned counsel for the petitioner vehemently relied upon para-18 of the said judgment of Hon'ble the Apex Court. The same is quoted as below : "18. It may be true that in a given case when an action of the party is dehors the terms and conditions contained in an agreement as also beyond the scope and ambit of the domestic forum created therefore, the writ petition may be held to be maintainable, but indisputably there for such a case has to be made out. It may also be true, as has been held by this Court in Amritsar Gas Service and E. Venkatakrishna that the arbitrator may not have the requisite jurisdiction to direct restoration of distributorship having regard to the provisions contained in Section 14 of the Specific Relief Act 1963; but while entertaining a writ petition even in such a case the court may not lose sight of the fact that if a serious disputed Question of fact is involved arising out of a contract Qua contract. ordinarily a writ petition would not be entertained. A writ petition, however, will be entertained when it involves a public law character or involves a question arising out of public law functions on the part of the respondent. " 16. In the present case, we have perused the termination order and the show cause notices issued to the petitioners. ordinarily a writ petition would not be entertained. A writ petition, however, will be entertained when it involves a public law character or involves a question arising out of public law functions on the part of the respondent. " 16. In the present case, we have perused the termination order and the show cause notices issued to the petitioners. The notices were issued adopting the due procedure and the replies thereon have been taken into consideration before terminating the dealership, thus we find that there is no violation of Article 14 of the Constitution of India. 17. The nature of activity between the petitioners and respondents is purely commercial one, on one hand the respondents make available the petroleum goods such as; petrol and diesel to be sold by the petitioner and the petitioner in response gets commission thereon. There is elements of Public Law Character involve in the activity which is evident from the nature of the activity that the petitioners have a status merely of an agent to sell the petrol and diesel provided by the respondents. Therefore, cancellation of the agency or dealership is purely commercial in nature and if the Arbitrator cannot restore the disputed dealership, it is open for the petitioners to avail remedy by filing civil suit, as from the documents annexed with the writ petition it illustrate that there are disputed question of facts to be decided and without leading evidence, the same cannot be decided. So far the dispute in regard to the issuance of the show cause notices is concerned, it is evident from the replies of the petitioners that on account of the death of two partners or on account of reconstruction, or renovation work they could not be able to lift the required quota for sale; the density variation was found on 18-06-04 in the H.S.D. for which the petitioners were panalised by suspending the sales for one month. The petitioners can raise the circumstances and their inability on which they could not comply with the terms and conditions stipulated in Clause IX of the Agreement before the appropriate forum. 18. Thus, we relegate the petitioners to avail the remedy by filing civil suit before the competent Court. The writ petition is accordingly dismissed. No order as to costs. * * *