Habba Khatoon Filling Stations and ors. Vs. Union of India (Uoi) and ors. - Court Judgment

J.P. Singh, J.

1. These two writ petitions one filed by Kashmir Valley Tank Owners/Petroleum Association (OWP No. 281/2007) and the other by forty two (42) Filling Stations of Kashmir Region (OWP No. 485/2007), raise similar issues pertaining to the petitioners' demand on the Oil Marketing Companies to provide them Test Kits to find the presence of Marker In the products which was supplied to them by the Oil Companies, besides other relief's flowing from the main relief.

Respondents Oil Marketing Companies and the Union of India have filed their reply to OWP No. 281/2007. Learned Counsel appearing for Union of India had requested for treating it's reply to OWP No. 281/2007, as reply to OWP No. 485/2007. His request was allowed.

With the consent of learned Counsel for the parties, these petitions were thus taken up for joint consideration.

FACTS:

2. Facts necessary for the disposal of these petitions, which have been taken mainly from OWP No. 281 /2007, read thus:

The case of the petitioners in these two writ petitions is that with the coming into force of the Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices), Amendment Order 2007 And Kerosene (Restriction on Use and Fixation of Sealing price) Amendment Order 2007, the respondents introduced a Marker System to check adulteration in auto fuels. This Marker System envisaged introduction of MARKER in Kerosene on All India basis. In order to determine the presence of a Marker in Kerosene, MS and High Speed Diesel and other petroleum products, a 'Test Kit' was devised by the respondents. This Test Kit would accordingly find out the presence or otherwise of the Marker in the Petroleum products when a sample of the product was taken for its check. The Oil Marketing Companies had after thorough discussion formulated Marker Test Procedure, which had been forwarded to all State Retail Heads on 30th of March, 2007. The Marker Testing procedure dated 30th of March, 2007, provided the procedure for observing Marker Testing Procedure at the Retail out lets. In case the test passes, action will be taken against the Retail Out Let dealers as per Marketing Discipline Guidelines.

3. It is stated by the petitioners that with the issuance of Control Orders of 2007, the respondents had amended the Market Discipline Guidelines of 2005, which were in force prior to the Control Orders of 2007. A new chapter relating to introduction of blending of Marker in potential adulterants came to be introduced in the existing guidelines. Chapter 12 of the Marketing Discipline Guidelines, 2005 (Amended), provided that the concerned Oil Marketing Companies had to ensure that any Superior Kerosene Oil (SKO, for short) leaving the marketing terminal, would be blended with the Marker, as per the recommended dose. This blending would be carried out either in the storage Tank or at the time of loading the Tank Lorry before its dispatch. After blending the Marker in the Tank/Tank Lorry, sample is to be taken and tested for presence of the Marker. The petitioner-association and the other petitioners say that all the Transporters and Retail Out Let Dealers had approached the respondents not to go ahead with the Marker Testing System unless they were provided the Test Kits. The respondents, the petitioners say, had agreed to provide the Test Kits. They had further assured all the Retail Out Let Dealers that Marker Tests would not be conducted till they were supplied the Test Kits.

4. The grievance of the petitioners, in nutshell, is that without providing Test Kits to them, the respondents had started undertaking the Marker Test of the Retail out lets of the dealers. This, according to them, had caused harassments and given them cause to approach this Court to seek a mandamus on to the respondents to provide them Marker Testing Equipment and to refrain from conducting Marker Test at the retail out lets of the dealers of the petitioners till such time Market Testing Equipment was not provided to them. The petitioners rely upon various news paper cuttings, projecting that the respondents had backed out from their assurance to provide them Test Kits.

Union of India and Oil Companies have filed their reply which is on similar lines. It is stated that the relationship between the Dealers, members of the petitioner-association and the Oil Marketing Companies is governed by individual commercial contracts and the disputes arising out of such contracts cannot be adjudicated upon in a writ petition when mode of resolving such disputes was provided in the agreement itself.

5. While giving the background of the introduction of the Marker Testing System and the built-in safeguards introduced therein, these Oil Companies say that the possibility of adulteration of Petrol/Diesel by some unscrupulous elements cannot be ruled out due to huge price difference between petrol/diesel and various adulterants available in the market and the easy miscibility of these products with Petrol/Diesel. One of the major adulterants is Superior Kerosene Oil, which is highly subsidized by the government. The estimated loss of subsidy/under recoveries on account of Superior Kerosene Oil for the years 2004-2005, 2005-2006 and 2006-2007 are rupees 947 crores, Rs. 14384 crores and Rs. 19403 crores respectively. Moreover, because of the similarity in characteristics and easy miscibility of the products, detection of the same is a challenge. In spite of various efforts by the Oil Companies to prevent adulteration in auto fuel, a recent study carried out by the National Council of Applied Economic Research (NCEAR) on behalf of the Ministry of Petroleum & Natural Gas, Government of India, New Delhi, had established that about 38.6% of the public distribution system kerosene was not reaching the targeted end users. The Oil Companies say that use of the adulterated fuel in motor vehicles not only damages the motor engines but it also creates environmental pollution. This also, the oil Companies and the Union of India say, create artificial scarcity of Public Distribution System kerosene, leading to black-marketing of this subsidized product, which is meant for cooking and lighting purpose only. To check adulteration in auto fuels and diversion of PDS kerosene, the government had asked the oil marketing companies to take various steps to contain the menace of adulteration. Despite taking all steps, the menace could not be so controlled. It was at the initiative taken by the ministry of Petroleum and Natural Gas that the Oil Companies decided to introduce Marker System, initially in the Kerosene, so as to detect diversion of Kerosene, as also adulteration of Motor Fuels, i.e. Motor Spirit and High Speed Diesel with Kerosene. It was in this background that the Motor Spirit and High Speed Diesel (Regulation of supply, Distribution and Prevention of Malpractices), Amendment Order 2007 AND Kerosene (Restriction on Use and Fixation of Ceiling Price) Amendment Order, 2007 came into force.

6. Marker has been defined in the Control Orders as a chemical substance approved by the Central Government from time to time for blending in Kerosene and other Petroleum products with the objective of preventing their diversion or adulteration of Motor Spirit and High Speed Diesel. It is stated that the Oil Companies had chosen this product/system after satisfying themselves with the efficacy of the same. Under the Marker Test Programme, five parts per million (PPN) of this chemical is blended with entire kerosene (PDS and non-PDS) sold in India. By testing the sample of Motor Spirit and High Speed Diesel at any stage for presence of Marker, the adulteration of the same with the Marker blended kerosene can be detected. A special test kit is required for conducting this test. This test kit has been supplied to the inspecting officials of the oil Marketing Companies.

7. The Test Kit essentially comprises of the buffer solution, plastic syringes and bottles and Immuno Assay System (IAS) columns. The IAS column contains especially cultured resins which, when comes in contact with Marker, produces a distinct pink colour. Hence, when adulterated Motor Spirit or High Speed Diesel is injected through the Immuno Assay System Column, using the syringe, the pink colour establishes the adulteration of Motor Spirit or High Speed Diesel with the marker blended kerosene.

8. The Oil Companies say that while initially it was thought that the Test Kits would be provided to all the dealers on payment of cost to enable them to conduct test on demand from public, but having regard to the fact that in many cases, the Managers and the employees receive the product and handle other affairs on behalf of the dealers, it was apprehended that giving these sensitive Test Kits to dealers may allow the same falling into the hands of unscrupulous elements, who may develop antidotes, which will result in failure of the entire scheme of the Marker system.

9. Giving the aforesaid background of the introduction of the Marker system, the Oil Companies say that writ petition does not raise the infraction of any fundamental right and, would not thus be maintainable. They have denied the plea of the petitioners that conducting of Marker Tests, without supplying the Testing Kits to the dealers, would harass them. It is submitted that the procedure of the Marker system was transparent and judicious, which provides adequate safeguard to innocent dealers. Giving the details of the Marker test conducted up to 30th of April, 2007, the Oil Companies say that approximately 17000 marker tests were conducted and only 13 samples of the dealers had failed. The Oil Companies thus demonstrate that adulteration by addition of Kerosene had been curtailed. The plea of the petitioners that assurance was given by the Oil Companies to the federation of All India Petroleum Dealers Association, has been denied as incorrect. The Oil Companies further say that the three tier sampling system as also the sampling system provided for Marker Test protects the innocent dealers. The dealer always possesses with him the sample of the product, which he receives in his tank, The plea of the dealers for seeking supply of Testing Kit to them, in view of the existing fair system employed by the Oil Companies, was unjustified and misconceived.

Issues raised at the Bar:

10. Heard Mr. M.A. Qayoom, learned Counsel appearing in OWP No. 281/2007, Mr. J.I. Ganai, learned Counsel appearing in OWP No. 485/2007 and M/S Z.A. Shah, Sr. Advocate appearing for the Oil Companies and Mr. Anil Bhan, ASG, appearing for Union of India and perused their written submissions.

The petitioners do not disputed or question the Central Government's power to issue the Control Orders and the Guidelines. All that is urged by their learned Counsel in support of the writ petitions is the Oil Marketing Companies had not honoured their commitment to supply Market Test Kits to the Retail out let dealers and the transport carriers of the Petroleum products, And that the Marketing Discipline Guidelines did not contain such provisions which may protect innocent transporters and Retail out let dealers against the harassment which the marker tests would bring in for them, in the absence of individual Test Kits with the contractors and Retail out let dealers. These writ petitions, therefore, seek a command to the respondents to supply them the Test Kits so that they are able to conduct tests themselves to avoid adulteration in the petroleum products.

11. Mr. Z.A. Shah, learned senior Counsel appearing for the Oil Marketing Companies, urged that the Marketing Discipline Guidelines, 2005 and amendment introduced therein in 2007, introducing Chapter XII to these guidelines, provide requisite and sufficient safeguards both for the Transport contractors and the Retail out-let dealers of the petroleum products. Scrupulous and innocent dealers have been properly protected by the guidelines against any type of harassment whatsoever, says the learned Counsel. Learned Counsel urges that the Central Government had acted in public interest to introduce marker test to prevent adulteration of petroleum products besides preventing black-marketing of public distribution system Kerosene because the earlier prevalent system had not been so effective to check the menace of adulteration in the petroleum products and deprivation of the supply of PDS Kerosene to the rural masses, who are dependent on their domestic needs on it. Learned Counsel referred to various clauses in the marketing discipline guidelines to support his submission that the guidelines did provide requisite and sufficient safe guards to the innocent and scrupulous petroleum product contractors and Retail out let dealers.

12. Learned Counsel was emphatic is saying that Oil Companies had not at any time extended any enforceable assurance either to the petroleum product transporters or to the Retail out let dealers to provide Marker Testing Equipment. He, however, added that a tentative view point of the Oil Companies that the Marker Testing Equipment should be provided to the Retail out let dealers, was not accepted for there was every possibility of the equipment falling into the hands of unscrupulous elements, which would have facilitated them in developing Antidote to the chemical substance introduced in the Marker Test, which would in turn have the effect of frustrating all the efforts which the Central Government and all the Companies had been making to deal effectively with the menace of adulteration in the petroleum products. Learned Counsel submits that it was thus finally decided that the companies would not supply Marker Test kits to the dealers.

13. It has been urged by the learned Counsel that the Oil Companies are not under any obligation, still less a statutory obligation, to supply Test Kit to the dealers which obligation may be enforced by the transport contractors/retail out let dealers by maintaining a writ of mandamus. Learned Counsel relies on the Praga Tours Corporation v. Shri C.A. Imanual and Ors. reported as : (1969)IILLJ479SC to submit that petitioners' writ seeking a writ of mandamus against the company was not maintainable.

I have considered the submissions of learned Counsel for the parties and gone through the Control Orders and Marketing Discipline Guidelines, of 2005 along with the amendment introduced to it in 2007.

Discussion on the issues:

14. Chapter I of the Marketing Discipline Guidelines 2005 prescribes procedure for handling of products at retail out-lets by dealers. Clause 1.1 of this Chapter reads thus:

1.1 RECEIPT OF PRODUCT:

At the time of arrival of tank lorry, the dealer should match the details, of the invoice with the receipt of consignment in the following manner:

i) TANK LORRY NO.

ii) SEAL/SECRITY LOCK NO.

iii) NO. OF COMPARETMENTS AND QUANTITY/PRODUCT CONTAINED THEREIN.

iv) THE TIME TANK LORRY LEFT SUPPLY POINT.

v) RECORDED DENSITY AT 15 DEGREE C

Sub Clause viii of Chapter 1.2 pertaining to Decanting of products reads thus:

viii. Dealer to check that the Density of product @ 15 Degree C using ASTM Tables (53B) is within +/- 3.0 Kg/M as compared with the challan density for ascertaining quality of product.

15. Chapter 2 of these guidelines provide Three Tier sampling procedure to ensure that Motor Spirit and High Speed Diesel sold by retail out lets is the same product which had been supplied to them by their respective Oil Companies. This chapter provides drawal of samples at two places, viz. (1) supply locations (2) Retail out-lets.

16. Chapter 2.2.1 and 2.2.2 pertain to collecting of samples, which includes collection of samples by the retail out let dealers as well. These two clauses of chapter 2 reads thus:

2.2.1. AT SUPPLY LOCATIONS;

(i) Everyday, Supply locations should collect minimum of 4 X 1 litre samples of MS and 2 X 1 litre samples of HSD from the TLF from which the tank lorries are being filled. (Industry Quality Control Manual procedures should be followed for sampling).

(ii) Wherever there is a switchover of tank, sample as above will be taken again for TLF, after giving sufficient time for flushing out earlier product in the pipeline.

(iii) Details of samples, as per Annexure-S-1 shall be pasted on the sample container and the samples will be retained for a minimum period of 15 days as per the existing Industry Quality Control Manual. The samples should have clearly identifiable sample numbers for these to the traced easily. The storage locations should also keep a record of these samples.

(iv) Supply Locations should give the details of Density @ 15 degree C, TLF point and the storage tank No. from which TLF filled on the Delivery/Invoice challan.

2.2.2 AT RETAIL OUTLETS

At the Retail Outlets, samples are required to be drawn by the following:

2.2.2.1 By the Dealer/his representative on receipt of each supply through tank lorries at the Retail Outlet.

2.2.2.2 Oil Companies have to draw the samples from all tanks of Retail Outlets as given below:

(a) From 1% of total No. of retail outlets under each Divisional/Controlling office every month till 31.12.05

(b) From 10% p.m of the total number of Retail Outlets w.e.f 01.01.2006 which will be progressively increased to 20% p.m from 01.01.2007 and 50% p.m from 01.01.2008.

17. Chapter 2.3 prescribes the procedure, which a dealer or his representative had to follow when a Tank Lorry reaches at his out-let. It reads thus:

2.3. DRAWAL OF SAMPLES BY DEALER/HIS REPRESENTATIVE:

On receipt of tank lorry, dealer/his representative should follow the following salient steps.

(a) Check seal nos/security lock nos on the tank lorry against those mentioned in the invoice.

(b) Release master valve levers to ensure that the product fills the pipes.

(c) Ensure that a minimum of 20 liters of product is removed before drawing the samples.

(d) Check the density at 15 deg C of individual compartments separately by drawing the bottom sample.

(e) If the variation in the density at 15 deg C of any compartment is beyond 3.0 (when density is measured in Kg/cu mt) when compared with invoice density, dealer should not decant the product. He should immediately report to Sales Officer/Supply location.

18. Chapter 2.9.2 enjoins the dealer to retain the Tank Lorry sample until next two loads were received in the respective underground tanks. This Clause 2 is reproduced hereunder for facility of reference:

2.9.2 At Retail Outlets:

a) Dealer shall retain the tank lorry samples until next two loads are received in the respective underground tanks. Wherever there is more than one tank for a product, the tank number in which the product was decanted should be indicated on the Tank Lorry Retention sample container.

b) The dealer, from whom the sample is drawn by the representative of the Oil Company for testing should retain his sample till such time the testing and subsequent procedures are completed.

Clause 6.2.1 prescribing sampling procedure too needs to be noticed. It reads thus:

6.2.1 SAMPLING PROCEDURE

3 samples (of 750 ml each) will be drawn. One will be left with the dealer, one with the company and the third will be sent to the respective Oil Company laboratory for testing. For the samples kept with the dealer, proper acknowledgment will be obtained and the dealer will be instructed to preserve the sample in his safe custody till the testing/investigations are completed. Details of the sampling procedure and the label to be pasted on the sample containers are given in Chapter-2. Samples thus drawn are to be sent to the respective Oil Company laboratory for testing. If the laboratory test report indicates that the sample found to be off-spec, a show-cause notice would be issued to the concerned dealer. If the explanation received from the dealer in response to the show-cause notice is found to be satisfactory, no further action is to be taken. In case, however, the explanation from the dealer is not satisfactory, penal action to be taken as given in Appendix-II.

19. A perusal of the above quoted clauses in the marketing discipline guidelines of 2005 indicates that sufficient safe guards have been provided by the Oil Companies against any possible harassment to the retail out let dealers and the apprehension projected by learned Counsel for the petitioners, that no checking procedure had been prescribed by the guidelines for the dealers at the time they receive the petroleum product from the tank lorries, appears to be unfounded. These guidelines specifically provide drawing of samples and their retention by the dealer at the time of his receiving the Petroleum Products from the tank lorries. This, in my view, is an adequate protection which had been provided by the Oil Marketing Companies to them, for in case the sample retained by them indicated that the petroleum product, when received by them, was adulterated, would not result in any penal or other action against them if inspection of their product later would show any type of adulteration.

20. I, therefore, do not find any merit in the contention of learned Counsel for the petitioners that the Marketing Discipline Guidelines do not provide adequate safeguards to the Retail out let dealers. The retail out let dealers have all along been satisfied with these guidelines of 1985 and had never complained of the inefficacy of these guidelines against any possible harassment to the dealers. The Petroleum dealers have thus, and rightly so, not questioned these guidelines in these writ petitions. One fails to appreciate as to how the question of harassment to the dealers had cropped up in the minds of the petroleum dealers after a gap of 22 years when the Company had introduced Chapter 12 to these guidelines, introducing Marker Test to check the menace of adulteration in the petroleum products when this Chapter, does in any way, take away the available protection which the guidelines had provided to the Petroleum Dealers. Introduction of Chapter 12 in the Marketing Discipline Guidelines had been necessitated because of the coming into force of the two Control Orders notified by the Central Government vide GSR 18 (E) of 12th January 2007 and GSR 19(E) of 12th January 2007, which for facility of reference are reproduced as under:

G.S.R 18(E).--In exercise of the powers conferred by Section 3 of the Essential Commodities Act. 1955 ( 10 of 1955) the Central Government hereby makes the following order to amend the Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) Order, 2005, namely:

1.(1) This order may be called the Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) Amendment Order, 2007;

(2) It shall come into force on the date of its publication in the official Gazette.

2. In the Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) Order, 2005 (hereinafter referred to as the said order), in Clause 2:

(a) In item (a), after the words 'means', the following shall be inserted, namely:

presence of marker in motor-spirit and high speed diesel and/or(b) In item (e), after the letters and figure 'IS1460' the following words shall be inserted, namely:

and also does not contain any traces of marker(c) After item (f), the following shall be inserted, namely:

(f1) 'marker' means a chemical substance approved by the Central Government from time to time or blending in kerosene and other petroleum products with the objective of preventing their diversion or adulteration of motor spirit of high speed diesel.(d) in item (g), after the letters figures 'IS 2796', the following words shall be inserted, namely:- 'and also does not contain any traces of marker',

(e) after item (m), the following shall be inserted, namely:

(ml) 'test kit' means a set of equipment used to determine the presence of marker in kerosene, motor spirit light speed diesel & other petroleum product(f) in item (f), after the words 'dealer of the words having traces of marker and/or shall be inserted.

3. In the said order in clause

(a) for the heading 'sampling of product' the heading 'sampling of product, and testing' shall be substituted.

(b) After the heading and before the Sub-clause (1), the following sub-clause shall be inserted, namely.-

(1A) The authorized effect under Clause 7 shall draw the sample from the tank, nozzle, vehicle or receptacle, as the case may be, in the test kit the product with the aid of test kit whether the product contains any traces of marker. If such traces are found in the product, the authorized officer shall record the same in triplicate which shall be jointly signed by him and the dealer or transporter or concerned person or his representative, as the case may be, and give one copy of such recording to the dealer or transporter or concerned person or his representative and another copy to the oil company concerned, as the case may be.(c) In Sub-clause (1), for the words, 'The authorized', the following shall be substituted, namely:

Where the product does not contain marker under Sub-clause (IA), the authorized officerG.S.R. 19(E).--In exercise of the powers conferred by Section 3 of the Essential Commodities Act, 1955 (10 of 1955), the Central Government hereby makes the following order further to amend the Kerosene (Restriction on Use and Fixation of Ceiling Price) Order, 1993, namely:

(1) (1)This Order may be called the Kerosene (Restriction on Use and Fixation of Ceiling Price) Order 2007.

(2) It shall come into force on the date of its publication in the Official Gazette.

(2) In the Kerosene (Restriction on Use and Fixation of Ceiling Price) Order, 1993 (hereinafter referred to as the said order), in Clause 2,-

(i) After (g), the following shall be inserted, namely:

(ga) 'marker' means a chemical substance approved by the Central Government from time to time for blending in Kerosene and other petroleum products with the objective of preventing their diversion or adulteration of motor spirit of high speed diesel and other petroleum products;(ii) after item (k), the following shall be inserted, namely:

(ka) 'test kit' means a set of equipment used 'to determine the presence of marker in kerosene, motor spirit, high speed diesel and other petroleum products.(3) In the said order, after Clause 8, the following clause shall be inserted, namely:

SA. Kerosene to be blended with marker-- All kerosene sold in India whether under the public distribution system or parallel marketing system, shall be blended with marker at five parts per million (ppm) concentration with the objective of preventing its diversion or adulteration of other petroleum products;(4) In the said order, in Clause 9, in Sub-clause (a), in term (iii), after the word 'procedures' the following shall be added, namely:draw and test samples of the product with the aid of test kit to determine blending of marker in kerosene.

21. All that these two control orders provide for is that the existing Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) Order, 2005 and the Kerosene (Restriction on Use and Fixation of Selling Price), Order 1993, had been amended to provide blending of Kerosene with the Marker, a chemical substance approved by the Central Government from time to time for blending in Kerosene and other petroleum Products with the objective of preventing their diversion or adulteration of Motor Spirit or High Speed Diesel and other petroleum products and introduction of Marker Test and providing of Test Kit to determine the presence of Marker in Kerosene, Motor Spirit, High Speed Diesel and other petroleum products.

22. These two orders therefore, do not contemplate any such situation which may furnish any legitimate basis to the writ petitioners to urge that with the introduction of Marker system, the petroleum dealers or transport contractors of the petroleum products were likely to be harassed. These two control orders and the Marketing Discipline Guidelines of 1985 (amended), provide for introduction of a Marker Test, which was an additional measure, which the Companies and the Government had devised, so as to check adulteration in the petroleum products.

23. Providing of an additional measure by the Central Government to cheek the menace of adulteration in the petroleum products cannot, by any stretch of reasoning, be viewed as taking away any of the safeguards provided to the petroleum dealers in the existing guidelines. I do not see any merit in the submission of Mr. Ganai that introduction of Marker Mechanism would affect petroleum dealer's fundamental right to carry on their trade. This is so because the petroleum dealers carry on their business of selling petroleum products according to the terms and conditions of their individual agreements with the Oil Marketing Companies; They are thus required to follow the directions/guidelines, which may be issued by the Central Government, so as to regulate the supply, distribution and for prevention of malpractices in respect of the petroleum products. Because of their dealing in a product, which is controlled product and an essential commodity under the Essential Commodities Act, 1955, the petroleum dealers cannot avoid their obligation to abide by the guidelines issued by the Central Government in this behalf from time to time. These guidelines cannot thus be construed as affecting in any manner whatsoever the conduct of business by the petroleum dealers.

24. The grievance of the petitioners that there were no safe guards to the petroleum dealers and introduction of the Marker Testing Mechanism would cause harassment to them, is thus misconceived. This takes me to the next submission of learned Counsel for the petitioners, which pertains to the alleged assurance of the Oil Companies to supply Test Kits to the petroleum dealers and transporters, And their entitlement thereto. The plea of the petitioners, that the Oil Companies had assured supplying of Test Kits to the petroleum product dealers and transporters, is sought to be supported by the petitioners on the basis of annexures J/3, J/4 and J/5, which are news paper cuttings, in which the companies are stated to have acknowledged that they would supply the Test Kits to the petroleum dealers.

25. I have perused these news paper cuttings besides other documents placed by petitioner-association on records. The documents placed by petitioners on records do indicate that there had been discussions between the Oil Companies and the petroleum dealers on the question of Marker Legislation but none of these documents indicate about any assurance by the Oil Companies to the dealers that they would provide them Marker Testing Equipments to ensure presence of Marker in the petroleum products. The news paper cuttings, which h have been relied upon by the petitioner-association too do not indicate any such assurance or commitment by the Oil Companies to the dealers for supplying them Marker Testing Equipments. All that these news paper cuttings indicate is that the strike of the petroleum dealers had been called off on the assurance of the Oil Companies that they would raise the commission of the dealers. I, therefore, do not find any material on records on the basis whereof it may be held that the Oil Companies had agreed to provide 'Test Kits' to the petroleum dealers. The petitioners plea that the Oil Companies had agreed to supply Test Kits to the petroleum dealers, And had backed out from their assurance is thus found to be incorrect.

26. It is true that Companies had been contemplating supplying of Marker Testing Equipment for the presence of the Marker to the petroleum dealers, but their contemplation, unless it had resulted in a commitment from the Companies to the dealers, would not provide any cause to the dealers to demand Marker Testing Equipment, particularly when the Companies had taken a conscious decision not to provide the Test Kit to the dealers, because providing of Test Kits, according to the Oil Companies, would have resulted in providing of Test Kits would have resulted in providing opportunity to the unscrupulous dealers and their staff to develop an antidote to the Marker chemical there by effecting adversely the drive of the Central Government and the Oil Companies to check the menace of adulteration in petroleum products.

27. That apart, even if it may be assumed for the sake of argument that the Companies had assured or for that matter agreed to provide Test Kits to the dealers (which, however, is not the position in the present case), such an assurance/agreement of the Companies, would not be enforceable by a writ of mandamus therefor. The Companies being non-statutory bodies and incorporated under the Company's Act, are not under any statutory obligation or public duty imposed upon them by any statute, to supply Test Kits to its dealers. No mandamus in such circumstances can be sought for by the petitioners against the Companies. The Praga Tools Corporation's Case reported as 1969 (1) SCC 585, supports this view where Hon'ble Supreme Court of India held as under:

A company being a non-statutory body and one incorporated under the Companies Act there was neither a statutory nor a public duty imposed on it by a statute in respect of which enforcement could be sought by means of a mandamus, nor was there in its workmen any corresponding legal right for enforcement of any such statutory or public duty. The High Court, therefore, was right in holding that no writ petition for a mandamus or an order in the nature of mandamus could lie against the company.

28. I, therefore, find that the Companies had not agreed to supply the Marker Testing Kit to the petroleum dealers. There was, therefore, no cause for the petitioners to have approached this Court to seek a command against the Companies to supply them the 'Test Kits' to notice the presence of Marker in their petroleum products. I further find that the petitioners are not entitled to claim Test Kits from the Oil Companies because the Companies are not under any statutory or other enforceable obligation to supply them the Test Kits. The decision of the Companies, not to supply Test Kits to the petroleum dealers and petroleum product transporters, appears to have been taken in public interest. This decision had been taken for good reasons to deal effectively with the menace of adulteration in the petroleum products. I do not find any justification to interfere with this decision of the Government of India and the Oil Companies.

29. The petroleum dealers or for that matter the petroleum transporters do not have any right still less one flowing from the two Control Orders or the Marketing Discipline Guidelines on the basis whereof they may be entitled to seek a command against the respondents to supply them Marker Test Kits.

30. The transporters are governed by Industry Transport Discipline Guidelines whereas the Retail out-let dealers are governed by Marketing Discipline Guidelines, besides their individual agreements with the respective Oil Marketing Companies. Grievance projected by the petitioners in these two writ petitions, being purely in the realm of contractual obligations, cannot even otherwise be gone into by this Court in exercise of its extra ordinary civil writ jurisdiction.

Conclusion:

31. The upshot of the above discussion is that petitioners have failed to establish any case for seeking a direction against the respondents to provide them Marker Testing Equipment for noticing the presence of Marker in the petroleum products, which are received by them from the Oil Marketing Companies. The petitioners are not entitled to seek any Restraint-writ too against the respondents from carrying out Marker Tests and inspections, in terms of the Control Orders and Marketing Discipline Guidelines.

32. There being no merit in these writ petitions, these are accordingly dismissed at the motion hearing along with connected CMPs.

33. Interim orders issued in these two writ petitions on 30.4.2007 and on 04.07.2007 shall stand withdrawn.