Judgment 1. Heard the counsel for the parties. 2. This application has been filed by the petitioner for quashing the communication, dated 20.12.2006, issued by the Bharat Petroleum Corporation Limited (hereinafter referred to as, the B.P.C.L) terminating the dispensing pump and sale licence agreement "B", dated 29.3.1996, and for a direction to the respondents not to interfere with the Dealership right of the petitioner and to restore the supply of petroleum products to the retail outlet of the petitioner. 3. Bharat Petroleum retail outlet Dealership was operating at Ekma in the name of M/s Singh Service Station Dispensing Pump Sale License (hereinafter referred to as, the D.P.S.L), dated 29.3.1996, executed between the B.P.C.L. and partners of the retail outlet Dealership. 4. D.P.S.L. "B" agreement contained several clauses including: "Clause 7 : (a) The Licensees shall be responsible to see the full and proper measure is delivered from the Outfit and shall have no recourse against the Company for any loss, damage, cost, charges or expenses which the Licensees may at any time suffer by reason of the Outfit delivering wrong measure or by reason of the Motor Spirit or H.S.D. becoming contaminated in any way. If at any time the Outfit shall be delivering wrong measure or shall develop any other defect the Licensees shall forthwith report such defect in writing to the Company and subject to sub-clause (b) hereunder shall not operate the defective portion of the Outfit further until the defect has been remedied. Clause 7 (c) : The Licensees shall in their own interest and as often as may be required by the Company check the accuracy of the pump/s and shall also provide facilities to the Companys staff for doing so whenever required. Clause 9 : Neither the Licensees nor the Licensees servants or agents shall interfere in any way with the working parts of the Outfits or other equipment provided by the Company. Clause 10(g) : Not to adulterate the petroleum products supplied by the Company and at all times to take all reasonable precautions to ensure that the Motor Spirit or H.S.D. is kept free from water, dirt and other impurity and served from the Outfit in such condition. Clause 13(a): Notwithstanding anything to the contrary herein contained the Company shall be at liberty to terminate this agreement forthwith upon or at any time on the happening of any events following. Clause 13(a): Notwithstanding anything to the contrary herein contained the Company shall be at liberty to terminate this agreement forthwith upon or at any time on the happening of any events following. Clause 13(d) : That if the Licensees commit breach of any covenant and/or stipulation in this Licence, the Company shall not be bound to observe and perform its obligations hereunder. Clause 13(e) : That the supply of Motor Spirit and/or H.S.D. and other Petroleum products by the Company to the Licensees pending the expiry of any notice of termination or after any act, contravention or omission by the Licensees in breach of this Licence shall not in any way prejudice or affect the right of the Company to revoke this Licence or to enforce the termination of this Licence under the said notice. Clause 14 : The termination or purported termination of this Agreement shall be without prejudice to any claims or rights of actions previously accrued to either against the other. Clause 15 : Upon the termination of this Licence for any cause whatsoever the Company shall be entitled to remove all its property and for that purpose it shall have the right to enter the premises of the Licensees." 5. The inspection of petitioners retail outlet was carried out by the Adulteration Drive Team of the B.P.C.L. on 13.10.2006 and some irregularities were found. (1) Communicating rod was found loose and delivering motor spirit short by 180 ml. per five liters. (2) Totalizer seal was found broken and short delivery of High Speed Diesel by 120 ml. per five liters. (3) Weight and measure metering unit seal was found tampered and delivering High Speed Diesel short of 100 ml. per five liters. (4) No retention sample of tank lorry was available at the retail outlet. (5) Free air facility was not available on the retail outlet. The inspecting team collected samples of motor spirit and high speed diesel from all three tanks and sent it for clinical test. A show cause notice was issued to the petitioner after receiving test report, which proved that sample take from motor spirit tank of retail outlet was adulterated and failed to meet specification as per quality standards sale by the oil industry. 6. Petitioner replied the show cause, dated 8.11.2006, stating that their has not been any complaint with the Dealership. A show cause notice was issued to the petitioner after receiving test report, which proved that sample take from motor spirit tank of retail outlet was adulterated and failed to meet specification as per quality standards sale by the oil industry. 6. Petitioner replied the show cause, dated 8.11.2006, stating that their has not been any complaint with the Dealership. For the last 74 years commendable service of the Dealership have been appreciated and certified by the B.P.C.L. in past. In reply to the allegation regarding tampering and breaking of totalizer seal and tampering of weight and measure meter unit seal for high speed diesel delivery units 2 and 3, it was stated that inadvertently it was broken by the staff working at the retail outlet, while dusting and cleaning during "Deewali". It was also stated that immediately information was sent to Weight and Measure Department by letter, dated 12.10.2006. Supply from that dispensing unit was immediately stopped. Reminders were sent to Weight and Measure Department on different dates. Territory Manager of B.P.C.L. was also requested to be present on retail outlet for reverification, fixing and stamping of totalizer seal in present of Weight and Measure Department. 7. Regarding loosening connecting rod of motor spirit dispensing unit and high speed diesel dispensing unit 1, it was stated that it was due to mechanical fault and continuous use. Regarding failure of collected sample in meeting specification as per quality standard, it was stated that tank lorry from which load of motor spirit was received on 3.10.2006 was not having required security lock, as required by Company, as such, there is possibility that octane number might have been changed due to tamper in transit by driver and khalasi of tank lorry. In the show cause it was also stated that as provided in Marketing Discipline Guidelines the octane number can be tested/checked from the samples collected from the under ground tank, tank lorry samples and samples collected from the depot. All three samples should be compared and tested at the laboratory. In the present case tank lorry sample was not sent for test, as such, it is difficult to come to the conclusion that octane number varied due to adulteration done at the retail outlet. So far laboratory report is concerned, the product has passed density test, appearabce, distillation, othanole and other characteristic except octane number as per the Marketing Discipline Guidelines. So far laboratory report is concerned, the product has passed density test, appearabce, distillation, othanole and other characteristic except octane number as per the Marketing Discipline Guidelines. It was also the case of the petitioner that octane number may vary as laboratory petroleum products of various nature like motor spirit, high speed diesel, S.K.O./L.D.O. are accumulated in the same tank lorry for delivery on various retail outlet. Petitioner also stated that since the Company is not providing container box for retaining sample of tank lorry, as such, in absence of test of tank lorry product, it is difficult to presume adulteration in the product at the retail outlet of the petitioner. 8. Cause shown by the petitioner was rejected by the B.P.C.L. by order, contained in letter, dated 20.12.2006, stating that in view of the breaches of the different clauses of B.P.C.L. Agreement, the B.P.C.L. has intended to terminate the Dealership Agreement, dated 29.3.1996,with immediate effect and the same is being terminated. 9. In course of argument the counsel for the petitioner has stated that the supply of container box by the Company is mandatory as per Marketing Discipline Guidelines, even then it was not supplied by the Company. Non-supply of the container box has raised dissatisfaction among the retail outlet dealers. Specially, for the reason that for not retaining sample of product supplied by tank lorry variation have been found in octane number and several Dealerships are being terminated by the respondents, as retail outlet dealers are not in a position to prove that they are not at fault if variation is found in the octane number. Final conclusion regarding octane number can be answered only when all these samples such as sample collected from underground tank, tank lorry and depot are placed for laboratory test. That has not been done in present case. As such, allegation cannot be said to have been proved. 10. However, serious objection has been raised by the respondents regarding non-calculation of the sample of the diesel and petroleum from the tank lorry by the petitioner as it is mandatory for deciding the point of adulteration has been done, whether during the transit or at the retail outlet. In the counter affidavit there is no specific denial that the container box was supplied by the respondents. 11. In the counter affidavit there is no specific denial that the container box was supplied by the respondents. 11. Counsel for the petitioner has placed reliance on a decision of the Jharkhand High Court in W.P. (C) No. 6153 of 2002 while considering the imposition of penalty by the Corporation for not fulfilling the RON number the High Court set aside the order on the ground that the standard product was not supplied by the Corporation from its premises and the petitioner cannot be blamed for failure of RON number till it is established that the petitioner has his hand in gloves with theCorporation tank or anyone of the Corporation. 12. In reply to this contention on behalf of the petitioner it has been stated by the counsel for the respondent that the order passed by the Jharkhand High Court has no application in the present case as the circumstance in the said writ petition was not similar to this writ petition. From the fact of the case it is easily ascertained that the tank lorry sample was kept by the dealer in that writ application and that sample also did not meet with the required RON number. In the present case, the petitioner cannot be absolved as he failed to retain the tank lorry sample. No benefit can be given to the petitioner on the basis of such decision. 13. I find that the decision of the Jharkhand High Court is fully applicable in the present case though there is some differences in the facts of the case. In that case sample of the tank lorry was retained by the dealer and in the present case it has not been done. The samples could not be retained by the petitioner due to non-supply of container box which according to Marketing Discipline Guidelines is to be provided by the oil company. This fact has not been denied by the respondent in the counter affidavit. It has been stated by the petitioner in the writ application that on several occasions request was made for providing container box but it was not made available. In the given facts and circumstance, it can not be presumed that adulteration in the product was at retail outlet and the laboratory report in which variation has been found in the octane number for that petitioner is responsible. 14. In the given facts and circumstance, it can not be presumed that adulteration in the product was at retail outlet and the laboratory report in which variation has been found in the octane number for that petitioner is responsible. 14. Counsel for the petitioner has stated that retail outlet was subjected to periodical inspection by various authorities and at no point of time violation of any rules, regulations or direction by the Company was observed in past. In reply to this the counsel for the respondents of the B.R.C.L has stated that historical instance has no bearing in the case and it cannot be used to plead innocence. It cannot be inferred that since in the past no violation was detected from the retail outlet, the Dealership cannot be questioned after detection of irregularities. In fact, it has been admitted by the respondents that during 74 years business relationship in between the petitioner and the B.P.C.L in the past there has not been any complaints or irregularities. 15. I find that the past history of the petitioner has bearing while imposing penalty. The present allegation bearing first default on the part of the petitioner the Corporation was needed to give opportunity to the petitioner to mend its ways. In case such irregularities would have been repeated by the petitioner, harsh decision, like cancellation of licence of dealership agreement should have been taken. 16. Accordingly, the order, dated 20.12.2006, issued by the B.P.C.L terminating the dispensing permit and sale licence agreement "B", dated 29.3.1996 is quashed. The respondents are directed to restore the supply of petroleum products to the retail outlet to the petitioner and not to interfere with the dealership of the petitioner.