Prasanna Kumar Kharya v. Bharat Petroleum Corporation
2020-06-24
AJAY KUMAR MITTAL, VIJAY KUMAR SHUKLA
body2020
DigiLaw.ai
JUDGMENT Vijay Kumar Shukla, J. - Hearing convened through video conferencing. 2. The present writ appeal has been filed under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth ko Appeal) Adhiniyam, 2005 against the order dated 01-5-2020 passed by the learned Single Judge in W.P. No.17763/2016. 2. The appellant No.1 is a proprietary firm engaged in the business of sale of petroleum products through its outlet situated at Kanjal Gotegaon, District Narsinghpur, M.P. On 16-10-2014 a team of officers of the respondents visited at the retail outlet of the appellant and thereafter an inspection report was submitted. On 15- 11-2014 a show cause notice was issued to the appellant and it filed reply to the same. The appellants also lodged an FIR and submitted a representation on 23-11-2015. On 14-01-2016 the officers of the respondents again visited at the spot and took some parts from the outlet and the appellant was advised to maintain status-quo. 3. Since the representation of the appellants was not decided by the respondents, the writ petition was preferred which was disposed of with the directions to the respondents to decide the matter within a period of 30 days and communicate the order to the petitioner. Thereafter, the respondents passed the impugned order on 6-10-2016 whereby dealership agreement of the petitioner dated 16-6-2005 was terminated. In the impugned order, it was held that there was violation of Clause 9 of dispensing pump and selling license agreement dated 18-6-2005. As per Clause 9 neither the licensees nor licensees servants or agents shall interfere in any way with working parts of the outfits or other equipments provided by the company. As per Clause 13(1)(7) of the aforesaid agreement, if licensee shall be guilty of breach of any of governance and stipulation their part contained in the license, then company shall be at liberty to terminate the agreement. 4. In the impugned order it was held that e-cal log of 2nd Nozzle of both dispensing units bearing Sr.No.12EB0666V and MPD bearing Sr. No.12EB0658V were found to be changed on 15- 03-2014 and was not tallying with Weight and Measure Certificate, dated 30-12-2013. Changes observed in the e-cal log on 15-03-2014 without any Re-stamping certificate and valid Weight and Measure Certificate amounting to tampering of dispensing unit of the company.
No.12EB0658V were found to be changed on 15- 03-2014 and was not tallying with Weight and Measure Certificate, dated 30-12-2013. Changes observed in the e-cal log on 15-03-2014 without any Re-stamping certificate and valid Weight and Measure Certificate amounting to tampering of dispensing unit of the company. K-factor being found changed without official stamping by Weight and Measure Certificate amounting to tampering of dispensing unit of the company. 5. Learned counsel appearing for the appellants submitted that as seals of the dispensing unit was found to be intact, therefore, there was no tampering with dispensing units. Recalibration of dispensing unit on 15-03-2014 has been disputed by the respondents, as there was no weight and measurement certificate. It was averred by the appellants that inspection was made on 31-5- 2014, 31-8-2014 and also on 11-10-2014, but nothing was found wrong in the calibration reports. It is urged that the mistake which occurred in the dispensing units was on 16-10-2014 due to foreign element. As per report, delivery of petroleum product was on higher side, therefore, it cannot be said that there was any tampering by the petitioners-appellants. 6. The learned counsel for the respondents submitted that dispensing units were recalibrated on 15-03-2014. The seals of dispensing unit were found to be intact. Weight and Measurement Certificate was issued on 30-12-2013. Since recalibration dated 15- 3-2014 is not tallying with the Weight & Measurement Certificate issued on 30-12-2013, it clearly establishes that there was tampering with the machine. There was calibration of dispensing units on 15- 03-2014 without any re-stamping certificate and valid Weigh and Measurement Certificate amounting to tampering of dispensing unit. It was found that integrated circuit of one motherboard was missing and component pin of both motherboard were found damaged and further LCD was also damaged and hence, both the cards were not getting on for testing. 7. According to the respondents it has clearly established that the machine was intentionally damaged, so that tampering of machine could not be deducted in testing. 8. The learned Single Judge after appreciating the facts and circumstances of the case in proper perspective, has declined to interfere in writ jurisdiction under Article 226 of the Constitution of India on the ground that disputed question of facts cannot be gone into in writ jurisdiction, as the same can only be decided after evidence is adduced by both the parties.
The learned Single Judge while dismissing the writ petition observed that the petitioners-appellants would be at liberty to go for arbitration proceedings in order to show that they have not tampered with the dispensing units of their retail outlet. 9. In view of the aforesaid, we do not find any illegality in the impugned order passed by the learned Single Judge, as apparently there are disputed questions of fact which cannot be gone into writ jurisdiction under Article 226 of the Constitution of India. 10. Ex-Consequenti, the writ appeal being sans merit, is hereby dismissed. However, the appellants would be at liberty to take appropriate legal recourse in accordance with law.