Judgment Alok Aradhe, J. 1. In this intra-court appeal the appellants have assailed the validity of the order dated 7-2-2012 passed by learned Single Judge in Writ Petition No. 10226/2008. In order to appreciate the appellants' challenge to the impugned order, few relevant facts need mention, which are stated infra. On 6-2-2007, the retail outlet operated by the respondent was inspected by the Sales Officer. During inspection, the sample was taken from the outlet of the respondent and the same was sent to the testing laboratory at Pune which was received by the said laboratory on 2-3-2007. The sample was tested on 14-3-2007 by the approved laboratory and as per the Laboratory Report the sample of motor spirit was found being OFF-SPEC as per IS 2796:2000. Accordingly, vide notice dated 27-3-2007, an explanation was sought from the respondent. The respondent vide communication dated 4-4-2007 requested the appellants to take a considerate view and also requested for retesting of sample. The request made by the respondent was considered sympathetically and under clause 2.5(D) of the Marketing Discipline Guidelines, 2005 (hereinafter referred to as the "Guidelines") an approval was granted by the General Manager, West Zone for retesting of the sample. In view of request made by the respondent, the sample was sent for re-testing on 4-4-2007 and was re-tested on 6-6-2007 in presence of the respondent and it was found that sample did not meet the specification as per IS-2796:2000, as it failed RON test. Thereafter a show-cause notice dated 5-11-2007 was issued to the respondent by which an explanation was sought from the respondent. The respondent submitted his explanation on 20-11-2007. The appellants after consideration of the explanation offered by respondent decided to terminate the dealership agreement of respondent dated 29-2-2000 and by an order dated 1-8-2008, the same was terminated. 2. Being aggrieved, the respondent filed the writ petition, namely, Writ Petition No. 10226/2008 which was decided vide order dated 7-2-2012. Learned single Judge inter alia held that once the Marker test was conducted, there was no need to hold any further tests. It was further held that in case any laboratory test was required to be conducted, then the notice ought to have been given to the respondent. Learned single Judge inter alia held that once the Marker test was conducted, there was no need to hold any further tests. It was further held that in case any laboratory test was required to be conducted, then the notice ought to have been given to the respondent. It was also held that there was an inordinate delay in conducting the second test and in any case even if the sample had failed the test, penalty of termination of dealership as per guidelines is harsh and excessive. Accordingly, the order dated 1-8-2008 terminating the dealership of the respondent was quashed and the appellants were directed to issue show-cause notice to the respondent and pass a fresh order after affording an opportunity of hearing to the respondent. 3. Learned counsel for the appellants submitted that the Marker test is conducted only to detect kerosene in the petroleum products. It is further submitted that in the absence of any express prohibition, there is no basis for recording the finding by the learned Single Judge that once Marker test fails, any other test cannot be held. It was further pointed out that respondent was present at the time when the sample was drawn and there is neither any averment made in the writ petition nor any argument was raised before the learned Single Judge that notice was required to be given for remaining present at the time of testing of the sample. While inviting the attention to Clause 2.5(L) of the Guidelines, it was urged that purpose of mentioning the timeframe prescribed for various activities i.e. sending sample to Laboratory, preferably within ten days etc., is to streamline the system and is no way related to quality/result of the product. It was also pointed out that the test has been conducted under the Marketing Discipline Guidelines. It was further submitted that under the revised Marketing Discipline Guidelines, in case of an adulteration of the petroleum product, the penalty of termination of dealership is provided, therefore, the finding recorded by the learned Single Judge that the penalty of termination of dealership, as per guidelines is harsh and excessive, cannot be sustained. 4. It was further submitted that under the revised Marketing Discipline Guidelines, in case of an adulteration of the petroleum product, the penalty of termination of dealership is provided, therefore, the finding recorded by the learned Single Judge that the penalty of termination of dealership, as per guidelines is harsh and excessive, cannot be sustained. 4. On the other hand, learned counsel for the respondent has invited the attention of this Court to Clause 8(4) of the Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) Order, 2005, and has submitted that under the aforesaid Clause, the authorised officer has to forward the sample of the product taken within ten days to the Laboratory for analysing with a view to check whether the density and other parameters of the product conform to the requirement of Bureau of Indian Standard Specification No. IS-2796 and IS-1460 for Motor Spirit and High Speed Diesel, respectively. It was further urged that in instant case, the timeframe prescribed in Clause 8(4) of the Order, 2005, which is mandatory in nature, has not been followed, therefore, the entire action taken by the appellants against the respondent is vitiated in law. It is pointed out that section 15(3) of the Act provides that the Standard Test Apparatus shall, on payment of the prescribed fee, be open to inspection at all reasonable times by any person wishing to inspect it, and the right to inspect the apparatus includes the right to witness the test in the Laboratory. It is further submitted that no notice was given to the respondent with regard to the test which was conducted in the Laboratory. 5. While referring to the second test report, it was pointed out that sample was not tested with regard to density and in the first sample, the variation in density was within the prescribed limits and from the test reports, it is not clear as to which sample has been tested by the respondent. It was pointed out that the Marker test applies for other petroleum products as well. It is also urged that as per the procedure prescribed for Marker test in case sample passes the Marker test, the second sample has to be returned to the dealer and the same could not have been sent unilaterally by the appellants herein for further tests. It is also urged that as per the procedure prescribed for Marker test in case sample passes the Marker test, the second sample has to be returned to the dealer and the same could not have been sent unilaterally by the appellants herein for further tests. Lastly, it was argued that the sample collected at the supply location and transport trolley sample was not retested. However, it was fairly conceded by learned counsel for the respondent that under the revised marketing guidelines, the penalty of termination of dealership is prescribed, in case the sample is found to be adulterated. In support of his submissions, learned counsel for the respondent has placed reliance on decisions of Supreme Court in Harbanslal Sahnia and another v. Indian Oil Corporation Ltd. and others, (2003) 2 SCC 107 , Allied Motors Limited v. Bharat Petroleum Corporation Limited, (2012) 2 SCC 1 , Bharat Petroleum Corporation Limited v. Jagannath and Company and others, (2013) 12 SCC 278, Hindustan Petroleum Corporation Limited and others v. Super Highway Services and another, (2010) 3 SCC 321 and Swantika, Bhopal v. Indian Oil Corporation Ltd., Mumbai, 2011 (4) MPLJ 2010. 6. We have considered the respective submissions made by learned counsel for the parties. In order to check adulteration of petroleum/diesel by unscrupulous elements the Central Government has taken various steps to curb the menace of adulteration. In exercise of powers under section 3 of the Essential Commodities Act, 1955 the Central Government has framed Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) Order, 2005 [hereinafter referred to as the "2005 Order"]. Under the aforesaid 2005 Order any Gazetted Officer of the Central Government or a State Government or Police Officer not below the rank of Deputy Superintendent of Police duly authorized, by general or special order of the Central Government or a State Government, as the case may be, or any officer of the oil company not below the rank of Sales Officer has been given the powers to make search and seizure. Clause 8 of 2005 Order deals with Sampling of Product. Clause 8 of 2005 Order deals with Sampling of Product. Clause 8(4) of 2005 Order provides that an 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 produce conform to the requirements of Bureau of Indian Standard specifications number IS 2796 and IS 1460 for motor spirit and high speed diesel respectively. 7. Clause 8(6) of 2005 Order provides that authorized 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. Clause 10 of 2005 Order which deals with overriding effect of the Order reads as under:-- "10. Overriding effect -- The provisions of this Order shall have overriding effect notwithstanding anything to the contrary contained in any order made by a State Government or by an officer of such State Government before the commencement of this order except as respects anything done or omitted to be done thereunder before such commencement." From careful scrutiny of the provisions of 2005 Order, it is evident that there is no provision for re-testing of sample in 2005 Order. 8. The Public Sector Oil Marketing Companies have framed Marketing Discipline Guidelines, 2005 to ensure dispensation of correct quality and quantity of products sold through their network and to prevent malpractice in the sale of petroleum products. Chapter-2 provides for guidelines for sample collection and testing. Clause 2.5 deals with general points to be observed in all cases. The relevant extracts thereof read as under:-- "2.5 General points to be observed in all cases. -- (A) All samples should preferably be suitably coded before sending to lab for testing within 10 days of drawal. (D) In case of sample failure, in the event of request for testing by the dealer the same to be considered on merits by the State Officer/Regional/Zonal General Manager of the concerned Oil Company. -- (A) All samples should preferably be suitably coded before sending to lab for testing within 10 days of drawal. (D) In case of sample failure, in the event of request for testing by the dealer the same to be considered on merits by the State Officer/Regional/Zonal General Manager of the concerned Oil Company. If approved by GM, the sample of retail outlet retained by the dealer along with the counter sample retained with the Field Officer/Oil Company are to be tested as per the guidelines, preferably in presence of the Field Officer, RO dealer/representative and representative of QC Dept. of the Oil Co. after due verification of the samples. All the 3 samples should be tested only in the same lab, and if possible by the same person to ensure repeatability and reproducibility. The expenditure incurred for such testing should be recovered from the dealer. The decision of the GM, which would be based on the test results of all the 3 samples would be decisive and binding on all. (I) The purpose of mentioning time frame for various activities e.g. sending samples to lab preferably within 10 days etc. is to streamline the system and is no way related to quality/result of the product." Note (xi) Appended to Chapter-6 reads as under:-- "(xi) Under existing laws, Control Orders etc. various authorities of Central Government/State Government-in addition to Oil Company Officer-are empowered to carry out checks of the dealership for determining and securing compliance with such laws/Control Order. If any "malpractice or irregularity " is established by such authorities after checking, the same would also be taken as a "malpractice or irregularity" under these guidelines and prescribed punitive action would be taken by the Oil Company, on receipt of advice from such authority." Thus, it is evident that power to inspect retail outlet and to draw samples can be exercised under the Control Order framed under section 3 of the Essential Commodities Act, 1955 as well as under the Guidelines by the Authorised Officer of the Oil Company. Appendix-I annexed to the Guidelines provides that in case the sample is found to be adulterated, the penalty prescribed under the guidelines is termination of dealership." 9. Separate guidelines have been prescribed for conducting the Marker test at the retail outlet. Appendix-I annexed to the Guidelines provides that in case the sample is found to be adulterated, the penalty prescribed under the guidelines is termination of dealership." 9. Separate guidelines have been prescribed for conducting the Marker test at the retail outlet. Clause 6 under the aforesaid guidelines stipulate that Marker test has to be conducted after sending notice to the dealer and the transporter so that they can remain present at the time of marker test. From careful scrutiny of Marketing Discipline Guidelines, 2005 it is evident that there is no prohibition in the guidelines that once the sample passes the marker test, it cannot be subjected to any other tests. 10. It is also relevant to notice that there is no provision in 2005 Order framed under section 3 of Essential Commodities Act, 1955 for retesting of a sample, whereas the provision of retesting exists under clause 2.5(D) of Marketing Discipline Guidelines, 2005. The 2005 Order as well as Marketing Discipline Guidelines, 2005 framed by Public Sector Oil Companies co-exist and clause 10 of 2005 Order does not have any overriding effect on the Marketing Discipline Guidelines, 2005 framed by the Public Sector Oil Companies as clause 10 of 2005 Order has overriding effect only in cases of contrary provision contained in the Order made by the State Government. Admittedly, the Marketing Discipline Guidelines have not been framed by the State Government but by the Public Sector Oil Companies and, therefore, the provisions of Order do not have any overriding effect in respect of Marketing Discipline Guidelines, 2005. 11. Admittedly, in the instant case, the retail outlet of the respondent was inspected by the Sales Officer of the appellants on 6-2-2007 and samples of motor spirit and high speed diesel were drawn and were sent to the laboratory for testing in consonance with the provisions of 2005 Order. The samples were collected from the outlet in the presence of respondent. The sample of motor spirit failed to meet the specifications which is evident from test report dated 14-3-2007 in which it is stated that Motor spirit sample is of OFF SPEC as per IS 2796:2000 specifications. A show-cause notice dated 27-3-2007 was issued to the respondent. The samples were collected from the outlet in the presence of respondent. The sample of motor spirit failed to meet the specifications which is evident from test report dated 14-3-2007 in which it is stated that Motor spirit sample is of OFF SPEC as per IS 2796:2000 specifications. A show-cause notice dated 27-3-2007 was issued to the respondent. Admittedly, the respondent furnished an explanation on 4-4-2007 and requested for re-testing of the samples on the following grounds:-- "(a) All samples passed in density test performed by the inspecting authority at the time of inspection and were within the permissible limits. (b) There is marked variation in density of MS sample done by inspecting authority and stationary lab. (c) Marker Test of the samples was negative." The request was made by the respondent for re-testing of the samples under Clause 2.5(D) of the Marketing Discipline Guidelines, 2005 as the Control Order does not contain any provision for retesting of the sample. On the basis of request made by the respondent, the same was sent for re-testing and the samples were re-tested on 6-6-2007. It is pertinent to mention here that at the time of re-testing of the sample the respondent was present and did not raise any objection which is evident from Annexure-P-8 annexed with the writ petition by respondent himself. The test report dated 6-6-2007 shows that sample failed RON test. 12. From the above narration of facts it is evident that action for retesting of the sample was taken under Clause 2.5(D) of Marketing Discipline Guidelines, 2005, in view of request made by the respondent. Thus, the respondent, who was present at the time of re-testing of sample and who did not raise any objection at the time of re-testing of the sample was fully aware that re-testing of the sample is being done under the provision of Marketing Discipline Guidelines, 2005. The respondent cannot be allowed to approbate and reprobate. The respondent has, therefore, waived his right to raise an objection with regard to delay in drawing sample and is estopped by his conduct from challenging the procedure adopted by the appellants for re-testing the sample which was done at the request of the respondent who was present at the time when re-testing was done. The respondent has, therefore, waived his right to raise an objection with regard to delay in drawing sample and is estopped by his conduct from challenging the procedure adopted by the appellants for re-testing the sample which was done at the request of the respondent who was present at the time when re-testing was done. [See: Volats Ltd. v. State of A.P., (2004) 11 SCC 569 , Allahabad Bank and another v. All India Allahabad Bank Retired Employees Association, (2010) 2 SCC 44 and Shivshankar Gurgar v. Dilip, 2014(2) MPLJ (S.C.) 663 : (2014) 2 SCC 465]. For the aforementioned reasons, we find force in the submission made by learned counsel for the appellant and are inclined to accept the same. Therefore, the contention of the respondent that since time limit prescribed under clause 8(4) of 2005 Order was not followed and, therefore, the entire action taken by the respondent is vitiated does not deserve acceptance. 13. So far as the contention of the respondent that he had a right to witness the test also does not arise in the facts as the respondent was present at the time of re-testing of sample. Similarly, the contention that second test report shows that sample was not tested with regard to density and variation as density in first sample was within permissible limits, is required to be stated to be rejected as the dealership of the respondent has been terminated on the ground that sample has failed RON test and not with regard to variation in density in the sample. Learned counsel for the respondent was unable to point out any provision from the record that once the sample has passed the Marker test, no other test can be conducted. Therefore, we are inclined to accept the submission made in this regard on behalf of the appellants and to reject the contention made by the respondent. 14. The contention of the respondent that as per procedure prescribed for Marker test, if the sample passes the test, the same has to be returned to the dealer and the same cannot be sent unilaterally by the appellants for further test, is concerned, the same does not require any consideration as re-testing was done at the request of the respondent and he was present at the time of re-testing. The contention that Tank Trolley Sample and Depot Sample were not re-tested is concerned, in our considered opinion, the same was not required to be re-tested as the aforesaid samples had already passed earlier test. 15. The decision relied upon by the respondent in the case of Harbanslal Sahnia (supra) has no application to the facts of the case as the Supreme Court was dealing with a case where sample were drawn in violation of Order issued by the State Government. Therefore, it was held that delay in carrying out lab test in violation of provisions of the Order is irrelevant and non-existent fact for termination of dealership. In the instant case, re-testing has been done on the basis of request made by the respondent and in his presence under the provision of Marketing Discipline Guidelines, 2005. On the same analogy, the decision referred to by the respondent in the case of Allied Motors Limited (supra) has no application as in the aforesaid case samples were also drawn in violation of provisions of Motor Spirit and High Speed Diesel (Regulation of Supply and Distribution and Prevention of Malpractices) Order, 1998. 16. So far as the decision relied upon by the respondent in the case of Bharat Petroleum Corporation Limited (supra), the same has also no application to the facts of the case, as in that case the samples were drawn and the test was conducted in violation of provisions contained in Marketing Discipline Guidelines. In the instant case, as stated supra, re-testing of the sample was conducted on the basis of request made by the respondent and in his presence. It is relevant to mention here that respondent did not raise any objection whatsoever on any ground at the time of re-testing of the sample. Therefore, aforesaid decision is of no assistance to the respondent in the facts of the case. The case relied upon by the respondent, namely, Hindustan Petroleum Corporation Limited (supra) has no application to the obtaining factual matrix of the case, as in that case action of termination of dealership was taken without giving proper notice to the dealer which is not the case here. The decision in the case of Swantika, Bhopal (supra) also is of no assistance to the respondent in the facts of the case, as the same was a case of short delivery of petroleum product. 17. The decision in the case of Swantika, Bhopal (supra) also is of no assistance to the respondent in the facts of the case, as the same was a case of short delivery of petroleum product. 17. The respondent in the instant case has not been able to demonstrate that samples were drawn or have been tested and re-tested in violation of the provision of Marketing Discipline Guidelines, 2005 by the appellants. Similarly, the respondent has failed to point out any provision that once the Marker test is conducted, there is no need to hold any further tests. It is not open to the respondent to raise plea of inordinate delay in conducting the second test as the same was conducted in pursuance to the request made by respondent himself and the respondent was present at the time, when re-testing of the sample was done and has failed to raise any objection to the process of retesting. It is common ground that penalty of termination of dealership is provided under Marketing Discipline Guidelines, 2005 in case the petroleum product is found to be adulterated. In view of preceding analysis, we set aside the order passed by learned Single Judge. In the result, the appeal succeeds and is hereby allowed. As a result, the writ petition filed by the respondent stands dismissed with no order as to costs.