JUDGMENT Hon’ble Arun Tandon, J.—Heard Sri M.D. Singh ‘Shekhar’, learned Senior Advocate assisted by Sri Sanjay Kumar Singh, learned counsel for the petitioner, Sri Prakash Padia, learned counsel for respondent Nos. 2 to 4 and learned Additional Solicitor General of India for Union of India. 2. Petitioner was appointed as dealer for sale of oil and oil products of Indo-Burmah Petroleum Corporation Limited (for short ‘IBP Corporation’) under letter of the Divisional Manager, IBP Corporation dated 31st October, 2005 (Annexure-2 to the writ petition). An agreement was also executed between the petitioner and IBP Corporation on 31st October, 2005 (as is admitted in paragraph-4 of the writ petition), a copy of the same has been produced before this Court at the time of hearing (neither the execution nor the terms and conditions of the agreement are in dispute between the parties. 3. IBP Corporation has since been merged with Indian Oil Corporation Ltd. with all rights and obligations. The dealers appointed by the IBP Corporation are treated to be the dealers of Indian Oil Corporation on same terms and conditions. There is no dispute in that regard between the parties. 4. On 25th June, 2007 samples of Motor Spirit and High Speed Diesel were drawn from the nozzle of the delivery pump established at the retail outlet of the petitioner. A ‘Marker Test’ was carried out by the representatives of SGS India Private Limited. On 26th June, 2007, sales and supplies of the petroleum products from the retail outlet of the petitioner was suspended as the samples failed the Marker Test, under order of the Deputy Manager (Retail Sales), Indian Oil Corporation Ltd., Varanasi. On 28th June, 2007, the petitioner is stated to have sent a letter to the Indian Oil Corporation with a prayer that fresh inspection should be made and samples be drawn in the presence of the petitioner. This was followed by another letter dated 16th August, 2007 for the said purpose. 5. However, under letter dated 11th October, 2007, the petitioner was invited to appear for testing of the second sample drawn on 25th June, 2007 at the laboratory at Mughalsarai Terminal on 15th October, 2007 at the time fixed. Laboratory test of the retained sample was done at Maghalsarai Terminal on 15th October, 2007 in the presence of the representative of the petitioner and the samples again failed the Marker Test. 6. Laboratory test of the retained sample was done at Maghalsarai Terminal on 15th October, 2007 in the presence of the representative of the petitioner and the samples again failed the Marker Test. 6. For the purposes of carrying out the Marker Test after nearly five months of the date on which the samples were drawn from the Nozzle of the retail outlet of the petitioner at Mughalsarai Terminal, approval was also obtained from the competent authority, which added a note that for delay of five months, explanation of the officers concerned be called for. 7. On the basis of the failure of the samples, a show cause notice was issued to the petitioner calling upon him to submit a written explanation for the irregularities mentioned in notice itself within ten days, failing which the Corporation will have no other option but to take action against the dealership of the petitioner as per Marketing Discipline Guidelines 2005 and relevant clauses of standard dealership agreement. 8. Petitioner instead of submitting his reply to the notice issued filed Civil Misc. Writ Petition No. 52580 of 2007, which was disposed vide order dated 30th October, 2007 by providing that the petitioner may submit his reply within ten days from the date of order and General Manager, Indian Oil Corporation Ltd., U.P. State Office-II, Kapoorthala Complex, Aliganj, Lucknow was directed to conclude the proceedings within fifteen days thereafter. 9. Petitioner submitted his reply to the notice so issued vide letter dated 5th November, 2007 and pointed out that under Clause-2.10 of the Marketing Discipline Guidelines, samples collected from the retail outlet of the petitioner should have reach the laboratory for testing, within ten days and the testing must have been carried out at the laboratory within 20 days. Results of such testing are required to be communicated to the dealer within next 5 days. The total aforesaid period would work out to 35 days only. It was pointed out that in the facts of the case, the Indian Oil Corporation had taken 110 days for testing the samples, which was per se illegal. It was further pointed out that TT Retention Samples were available at the retail outlet, and an information to that effect was sent by a letter, however, the TT Retention Samples were not collected nor tested. Other discrepancies in taking of the samples were also pointed out. 10. It was further pointed out that TT Retention Samples were available at the retail outlet, and an information to that effect was sent by a letter, however, the TT Retention Samples were not collected nor tested. Other discrepancies in taking of the samples were also pointed out. 10. The Indian Oil Corporation did not find the explanation furnished by the petitioner satisfactory. Accordingly the dealership of the petitioner was terminated, having been found guilty of adulteration, as per order of the General Manager, U.P. State Office, Lucknow of Indian Oil Corporation dated 24th January, 2008. It has been recorded in the order that delay in testing of samples will not affect the quality of samples, hence no prejudice has been caused to the petitioner. It is further recorded that TT Retention Samples were not made available to M/s SGS Indian Private Limited as per its report dated 25th June, 2007 as they were not properly sealed. The explanation that the TT Retention Samples were kept in Almirah was therefore, not accepted. 11. The termination order of the dealership of the petitioner itself provided that as per clause No. (iv) of the ‘Notes in Chapter 6 of Marketing Discipline Guidelines-2005, the petitioner has a right of an appeal against the order before the Executive Director (Retail Sales), Indian Oil Corporation Limited, Indian Oil Bhawan, G-9 Ali Yavar Jung Marg, Bandra (East), Mumbai-51. Petitioner accordingly preferred an appeal before the Executive Director. The appeal filed by the petitioner has also been dismissed under the order of the Executive Director dated 4th April, 2008. It is against these two orders that the present writ petition has been filed. 12. An amendment application has been filed, which has been allowed vide order dated 24th April, 2009 for bringing on record the amendments made under the Government Order dated 31st December, 2008, to the Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) Order, 2005 (hereinafter referred to as the ‘Order, 2005’), whereby w.e.f. 12th January, 2009, the Marker Test for judging adulteration in the petroleum products has been discontinued. 13. Learned counsel for the petitioner contended that there has been inordinate delay in testing of the samples drawn from the nozzle of the retail outlet of the petitioner, further the TT Retention Samples were neither taken nor tested. 13. Learned counsel for the petitioner contended that there has been inordinate delay in testing of the samples drawn from the nozzle of the retail outlet of the petitioner, further the TT Retention Samples were neither taken nor tested. Lastly, it is submitted that the very basis on which the dealership has been cancelled, namely Marker Test itself has been found to be dis-effective/inconclusive to judge adulteration, therefore, discontinued under the Government Order w.e.f. 12th January, 2009. 14. A heavy reliance has been placed upon Clause 2.10 of Chapter-2 (Industry Guidelines for Sample Collection and Testing) of Marketing Discipline Guidelines, with reference to time frame provided for collection of the sample, transmission of the same to laboratory and testing thereof as well as for communication of the test report. 15. Learned counsel for the petitioner clarifies that the time frame fixed under Clause 2.10, has to be strictly followed and the total period provided would work out to 35 days from the date of drawal of the sample. In the facts of the present case the Indian Oil Corporation has taken 110 days to test the samples from the date of drawal, which makes the entire exercise illegal. 16. On behalf of the respondents a counter affidavit has been filed and a preliminary objection has been raised, with regard to the maintainability of the present writ petition, with specific reference to Clause 62 (a) of the agreement executed between the parties, which provides that any dispute in relation to, or arising thereto, as per the agreement, shall be referred to sole arbitrator i.e. the Director (Marketing) of IBP Corporation, who may either himself act as the Arbitrator or nominate some other officer of IBP to act as the Arbitrator, with a specific condition that no objection can be raised with regard to appointment of such arbitrator on the ground that the arbitrator is an officer of IBP. Reliance in that regard has been placed upon the Division Bench Judgment of Lucknow Bench of this Court in the case of M/s Balaji Filling Station Ltd. and another v. Bharat Petroleum Corporation Ltd. and another passed in Civil Misc. Reliance in that regard has been placed upon the Division Bench Judgment of Lucknow Bench of this Court in the case of M/s Balaji Filling Station Ltd. and another v. Bharat Petroleum Corporation Ltd. and another passed in Civil Misc. Writ Petition No. 10867 (MB) of 2008, decided on 3rd December, 2008 as well as upon the judgments of the Hon’ble Supreme Court of India in the case of P. Anand Gajapathi Raju v. P.V.G. Raju, (2000) 4 SCC 539 ; Hindustan Petroleum Corporation Ltd. v. Pink City Midway Petroleum, (2003) 6 SCC 503 ; A.B.L. International Ltd. v. Export Credit Guarantee Corporation, (2004) 3 SCC 553 ; Rashtriya Ispat Nigam Ltd. v. Verma Transport, (2006) 7 SCC 275 ; Bharat Sewa Sansthan v. U.P. Electronics Corporation Ltd., (2006) 7 SCC 737; Agra Gold Exims Ltd. v. Sri Laxmi Knits & Woven, (2007) 3 SCC 686 ; Empire Jute Co. Ltd. v. Jute Corporation of India Ltd., JT 2007 (12) SC 391; National Highways Authority of India v. Ganga Enterprises, (2003) 7 SCC 410 ; Sanjana M. Wig v. Hindustan Petroleum Corporation Ltd., (2005) 8 SCC 242 and Kerala SEB v. Kurient E. Kalathil, (2000) 6 SCC 293 . 17. On merit it has been explained that although there has been some delay in sending of the samples and testing of the same at laboratory, but in view of Clause 2.5 of Marketing Discipline Guidelines, it is apparently clear that time prescribed is only for streamlining the system and is not in any way related to the quality and result of the product. It is stated that one of the reason for delay in testing of samples was because of merger of the IBP Corporation Ltd. with Indian Oil Corporation Ltd. 18. In rejoinder it has been stated on behalf of the petitioner that since the appellate order has been passed by the Executive Director (Retail Sales) Indian Oil Corporation Ltd. (Marketing Division), Mumbai, any arbitration by the same officer as has been provided under Clause-62 of the agreement between the parties would virtually be an appeal from ceaser to ceaser’s wife. 19. I have considered the submissions made by the learned counsel for the parties and have gone through the records of the present writ petition. 20. The Court may first consider the preliminary objection qua the remedy of arbitration. 19. I have considered the submissions made by the learned counsel for the parties and have gone through the records of the present writ petition. 20. The Court may first consider the preliminary objection qua the remedy of arbitration. The order impugned as has been passed by the Executive Director, Marketing in his capacity as the Appellate Authority under the Marketing Discipline Guidelines. Arbitration application as per clause 62 (a) of the dealership agreement has to be filed before him. He is to act as the Arbitrator or can appoint some other officer for the same. In the aforesaid factual background, the reply of the petitioner to preliminary objection i.e. asking the petitioner to avail the remedy of arbitration under Clause-62 would only be a remedy from ceaser to ceaser’s wife is justified. Alternative remedy should be a real remedy and not a mere formality. 21. In the facts of the present case, this Court is satisfied that the preliminary objection qua the matter being referred for arbitration has to be rejected. This Court may record that with the enforcement of Marketing Discipline Guidelines-2005, which provide for an appeal against cancellation of dealership, a dealer has been provided two remedies one by way of appeal and the other by way of arbitration, both before the same authority i.e. Director Marketing. If the dealer has chosen the remedy of appeal, I am of the considered opinion that the remedy of arbitration is lost. Inasmuch as once the appellate authority has decided the matter in that capacity, he cannot hear and decide the same matter in a different capacity. (Reference Dr. Bishambhar Dayal v. Aligarh Muslim University through Vice-Chancellor and others, 1993(22) ALR 213). The judgments relied upon by the learned counsel for the respondents are clearly distinguishable on facts noticed above. It has been repeatedly held by the Hon’ble Supreme Court that a little difference in the facts or additional facts may make a lot of difference in the precedential value of a judgment (Reference Bhavnagar University v. Palitana Sugar Mills (P) Ltd. and others, 2003 (2) SCC, 111, which has recently been followed in the case of Rajveer Singh v. Chaudhary Devi Lal, 2008 AIR SCW 5817). The Court holds that in the facts of the present case, arbitration would not be the proper remedy. 22. Now turning to the merits of the case. The Court holds that in the facts of the present case, arbitration would not be the proper remedy. 22. Now turning to the merits of the case. The appellate order has only recorded that the time prescribed for testing of the samples is only for streamlining the proceedings and does not affect the quality of the samples as per clause 2.5 of the Marketing Discipline Guidelines. What has not been examined by the appellate authority is as to whether infact the delay of 110 days in testing of the samples would adversely affect its quality and as to whether such delay would in any way affect the testing report obtained thereof. This Court may also note that in between the Government of India has itself done away with Marker Test as is established from the amendments made in Order, 2005 vide notification dated 31st December, 2008, which has been brought on record as Annexure-22 to the writ petition (by way of amendment application). The issuance of the said notification is not in dispute between the parties. 23. Thus, two issues are up for consideration before this Court (a) whether delay of 110 days in testing of the samples would in any way effect its quality or not and (b) whether such delay is technical in nature and does not substantially affect any rights of the petitioner. The aforesaid issues need examination in the background that the Government of India has itself done away with Marker Test, as is established from the amendments made in Order, 2005 vide notification dated 31st December, 2008. It has to be kept in mind that establishment of retail outlet incurs heavy expenditure and is bread and butter to the dealer concerned. The same is not to be cancelled unless there is conclusive evidence of adulteration by the dealers. This Court feels that impact of withdrawal of marker test, which had remain in force only for a short duration of two years also needs examination in the aforesaid background. The same is not to be cancelled unless there is conclusive evidence of adulteration by the dealers. This Court feels that impact of withdrawal of marker test, which had remain in force only for a short duration of two years also needs examination in the aforesaid background. The Corporation is the best judge to satisfy itself as to whether the dealership is liable to be cancelled on the basis of marker test only, specifically in the background that such test at laboratory was done after 110 days of the drawal of the samples and when the marker test itself has been withdrawn by the Government of India basically for the reason that the marker test has not been found to conclusive for coming to the conclusion that there has been adulteration in the petroleum product, meaning thereby that the authenticity of such marker test itself has been found to be doubtful. 24. In such circumstances, the order passed by the appellate authority i.e. Marketing Director dated 4th April, 2008 cannot be legally sustained and is hereby quashed. 25. Let the Marketing Director examine the matter afresh in light of the observations made above and pass a reasoned speaking order, preferably within four weeks from the date a certified copy of this order is filed before him. 26. The writ petition is allowed subject to the observations made above. ———