# M/s Kamla Motors &Engineering Works Gorakhpur v. I.B.P. Co. Ltd

- **Citation:** (2000) 3 ILRA 231
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 1999-12-19
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-kamla-motors-engineering-works-gorakhpur-v-i-b-p-co-ltd-39335
- **Pages:** 9

## Text

231 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
and under the amended provisions, their
service conditions were to be prescribed
by Panchayats by resolution whereas the
condition of service of others were to be
prescribed by the Government. Their
promotional prospects were completely
wiped out and all advantages which they
could derive as a result of judgment of the
Court in their favour were taken away and
it was under these circumstances, that the
Supreme Court held that their status as a
Government
servant
would
not
be
extinguished so long as the posts were not
abolished and their services were not
terminated
in
accordance
with
the
provisions of Art. 311 of the Constitution
nor was it permissible to single them out
for differential treatment in violation of
Art. 14 of the Consti. In the present case,
it would be evident from clause (b) of
sub-section (1) of section 25 of the Act
that the service condition of the existing
Govt. employees of the Departments
transferred to Gram Panchayats have not
at all been altered as it is very clearly
provided in clause (b) of Sub-section (1)
of Sec. 25 that they would continue to be
governed and the same set of rules as
Government servants would, pro tanto,
apply to them as were applicable to them
on the date of devolution of power. In
such view of the matter, we find no
infirmity in the view taken by the learned
Single Judge dismissing the writ petition
nor do we find any substance in the writ
petition filed by and on behalf of Gram
Panchayat
Adhikari
challenging
the
validity of the amended sections 25 and
25 A of the U.P. Panchayat Raj Act, 1947
and the G.O. dated 1.7.99.
Accordingly, the appeals and the writ
petition aforestated fail and are dismissed.
We make no order as to costs.
Appeal Dismissed.

25,*,1$/ -85,6',&7,21
25,*,1$/ -85,6',&7,21
&,9,/ 6,'(
&,9,/ 6,'(
'$7(' $//$+$%$' )(%
'$7(' $//$+$%$' )(%
%()25(
%()25(
7+( +21·%/( 23 *$5* -
7+( +21·%/( 23 *$5* -
7+( +21·%/( 6. -$,1 -
7+( +21·%/( 6. -$,1 -

&LYLO 0LVF :ULW 1R RI

06 .DPOD 0RWRUV (QJLQHHULQJ ZRUNV
%LUGJKDW *RUDNKSXU
«3HWLWLRQHU
9HUVXV
,%3 &R /LPLWHG D *RYHUQPHQW RI ,QGLD
(QWHUSULVH
WKURXJK
LWV
'LYLVLRQDO
0DQDJHU
'LYLVLRQDO
2IILFH
$
+DVWLQJV 5RDG $VKRN 1DJDU $OODKDEDG
«5HVSRQGHQW

&RXQVHO IRU WKH 3HWLWLRQHU
6KUL 7DUXQ $JDUZDOD
6KUL %KDUDW -L $JDUZDO
&RXQVHO IRU WKH 5HVSRQGHQW
6KUL 9LQHHW 6DUDQ
6KUL .ULVKQD 0XUDUL
6KUL ./ *URYHU

$UWLFOH RI WKH &RQVWLWXWLRQ RI ,QGLD
LI WKHUH LV EUHDFK RI DQ\ RQH RI WKH
FRQGLWLRQV QHFHVVDU\ DFWLRQ DJDLQVW WKH
GHDOHU PD\ EH WDNHQ XQGHU FODXVH V
RI WKH DJUHHPHQW 6LQFH 06 VDPSOH IDLOHG
WR ZLWKVWDQG WKH WHVW RI VFUXWLQ\ ZLWK
UHJDUG WR 521 VSHFLILFDWLRQ VXSSO\ DQG
VDOH
RI
+6'
FRYHUHG
E\
WKH
VDPH
DJUHHPHQW ZHUH DOVR VXVSHQGHG
+HOG
7KDW
WKH
DJUHHPHQW
LQ
TXHVWLRQ
LV
FRPSRVLWH
RQH
7KH
ULJKW
WR
UHFHLYH
VXSSO\ DQG VDOH RI 06 DQG +6' HPDQDWHV
IURP WKH VDPH DJUHHPHQW DQG LQ WKH
DJUHHPHQW LW KDV EHHQ PHQWLRQHG WKDW LV
WKHUH
LV
EUHDFK
RI
DQ\
RQH
RI
WKH
FRQGLWLRQV QHFHVVDU\ DFWLRQ DJDLQVW WKH
GHDOHU PD\ EH WDNHQ XQGHU FODXVH V RI
WKH DJUHHPHQW 6LQFH 06 VDPSOH IDLOHG
WR ZLWKVWDQG WKH WHVW RI VFUXWLQ\ ZLWK
UHJDUG WR 521 VSHFLILFDWLRQ VXSSO\ DQG
3All] M/s Kamla Motors &Engineering Works Gorakhpur V. I.B.P. Co. Ltd. 232
VDOH
RI
+6&
FRYHUHG
E\
WKH
VDPH
DJUHHPHQW ZHUH DOVR VXVSHQGHG 3DUD

By the Court

1. The petitioner, M/s Kamla Motors
and Engineering Works, which is a
partnership firm, is engaged in the
business of sale of Motor Sprit (for short
'MS'), High Speed Diesel (for short
'HSD') and lubricants. The firm entered
into an agreement dated 21.12.1972 as a
licensee
of
Indo-Burma
Petroleum
Company Ltd., which was subsequently
taken over by the Government of India
through Acquisition Act and is now called
as IBP Co. Ltd., for sale of the aforesaid
products. The petitioner has a petrol pump
at Bridh Ghat, Gorakhpur. A copy of the
agreement dated 21.12.1972 containing
the terms and conditions, on which both
the parties have placed reliance, Annexure
2 to the writ petition. Clause 9(e) of the
agreement requires the petitioner:

"to take every reasonable precaution
against contamination of the products
supplied by the Company by water, dirt or
other hinges injurious to their quality and
not in any way directly or indirectly alter
the
company's
standard
quality
of
products as delivered. The company shall
have the right to exercise at their
discretion quality control measures for
products marketed by the Company."

2. By virtue of the provision made in
clause
9(s)
of
the
agreement,
the
respondent-company is at liberty to stop
all supplies to the licensee for such period
as the company may think fit, if there is a
breach of any of the terms and conditions
of the agreement by the licensee.

3. It appears that sample of MS was
drawn from the retail outlet of the
petitioner on 29.11.1999 by a Joint
Inspection Team. The sample was sent for
test report. The MS sample taken from the
retail outlet of the petitioner did not meet
the specification in respect of Research
Octane Number (popularly known as
'RON'). It was noticed that the petitioner
committed breach of terms and conditions
contained in clause 9(e) of the dealership
agreement as well as violated rules and
the
guidelines,
and
accordingly
the
impugned
order
dated
19.12.1999.
Annexure 1 to the writ petition was
passed
whereby
the
petitioner
was
required to explain the reasons for failure
of the sample. Sales and supplies of MS at
the retail outlet of the petitioner were also
suspended w.e.f. 16.12.1999. It is this
order which has been challenged in the
present petition on a variety of grounds.
In substance, the case of the petitioner is
that the MS sample, which was taken on
29.11.1999 from its retail outlet, was the
same as was supplied by the respondentcompany and that the petitioner has taken
all reasonable precautions against the
contamination of the products as supplied
by the company and if the sample has
failed in meeting the specifications in
respect RON, it was not on account of any
adulteration on the part of the petitioner.
It is averred that the MS sample has
withstood the test of scrutiny in all other
respects, except that it allegedly failed to
meet RON test for which the respondentcompany has no facility. The petitioner
asserts that it has not committed breach of
any of the terms and conditions contained
in the agreement, or violated the relevant
Control Orders and guidelines issued by
the
Central
Government
and
other
authorities.
233 INDIAN LAW REPORTS ALLAHABAD SERIES [2000

4. During the pendency of this
petition, the respondent also suspended
the supply and sale of HSD w.e.f.
5.1.2000. A copy of the said order, which
is also the subject matter of challenge in
the present writ petition, has been brought
on record as Annexure S.A. 1 with the
supplementary affidavit filed in support of
the amendment application. As the things
stand, the petitioner has now come to
challenge two separate orders dated
16.12.1999 and 5.1.2000 by which the
supply and sale of MS and HSD have
been suspended.

5. On behalf of the respondents, a
counter affidavit has been filed by Sri
Abhimanyu Gupta, Divisional Manager,
IBP Company Ltd., Allahabad. Repelling
the averments made in the writ petition, it
is stated that the various Government
orders and guidelines relied upon by the
petitioner
stand
superseded
by
the
subsequently enacted Motor Speed and
High
Speed
Diesels
(Regulation
of
Supply and Distribution and Prevention of
Malpractice) Order, 1998, (hereinafter
referred to as 'the Control Order, 1998')
which came into force w.e.f. 28.12.1998
and that under the said Control Order the
Octane Number of MS is also required to
be checked to ascertain purity by RON
test. It is maintained that since the sample
taken from the retail outlet of the
petitioner was adulterated as it did not
conform to the RON specifications, the
respondent- Company was justified in
initiating action against the petitioner in
terms of clause 9(s) of the agreement and
to suspend the supply and sale of both MS
as well as HSD. In reply to the counter
affidavit, a rejoinder affidavit has also
been filed by the petitioner.

6. Heard Sri Bharatji Agarwal,
Senior Advocate, assisted by Sri Tarun
Agrawal, Advocate, for [etotopmer and
S/Sri Vineet Saran and Krishna Murari
appearing on behalf of the respondents at
considerable length. Since the entire
material is available on record, this writ
petition is being disposed of finally at this
stage with the consent of the learned
counsel for the parties.

7. At the threshold of the hearing, a
preliminary objection was raised by Sri
Vineet Saran, learned counsel for the
respondent - company that the present
petition
under
Article
226
of
the
Constitution of India, which involves
interpretation of the various clauses
contained
in
the
agreement/contract
entered into between the petitioner and
the
respondent-company
is
not
maintainable and the proper remedy of the
petitioner for the relief of breach of
contract, if any, is to file a suit for
damages. It is an indubitable fact that the
respondent-company is an organ or an
instrumentality
of
the
State
as
contemplated under Article 12 of the
Constitution of India and consequently Sri
Bharatji Agarwal urged that the writ
petition
for
the
relief
claimed
is
undoubtedly maintainable. It was urged
that any authority covered under Article
12
cannot
act
arbitrarily
even
in
contractual matters and must act only to
further public interest. The point was
further developed by making submission
that the respondent-company being a
public body even in respect of its dealing
with its customers/dealers, it must act in
public interest and any infraction of their
duty is amenable to examination either in
civil suit or in writ jurisdiction. It is true
that if a Government policy or action,
even in contractual matters fails to satisfy
3All] M/s Kamla Motors &Engineering Works Gorakhpur V. I.B.P. Co. Ltd. 234
the test of reasonableness, it would be
unconstitutional. In this connection, a
reference may be made to the celebrated
decisions of the apex court in M/S. Radha
Krishna Agarwal V. State of Bihar A.I.R.
1977
SC-1496;
K.D.
Shetty
V.
International Airport Authority of India
(1979) 3 SCC - 489; Kasturi Lal Laxmi
Reddy Vs. State of J & K (1980) 4 SCC-
1; Life Insurance Corporation of India V.
Escorts Ltd. -(1986)1 SCC-264 M/s
Dwarkadas Marfatia and Sons. V. Board
of Trustees of the Port of Bombay -
(1989)3 SCC -293; Mahabir Auto Stores
V. Indian Oil Corporation -A.I.R. 1990
SC -1031. The point was succinctly made
out by the Supreme Court in the case of
Som Prakash Rekhi V. Union of India -
(1981) 1 SCC-449 reiterated in M.C.
Mehta V. Union of India -(1987) 1 SCC395, wherein it was observed that :

"It is dangerous to exonerate corporations
from the need to have constitutional
conscience : and so, that interpretation,
language, permitting, which makes a
governmental agencies, whatever their
mien,
amenable
to
constitutional
limitations, must be adopted by the court
as against the alternative of permitting
them to flourish as an imperium in
imperio."

8. As regards the power of judicial
review, the apex court in E.P. Royappa V.
State of Tamil Nadu- (1974) 4 SCC -3;
Maneka Gandhi V. Union of India-(1978)
1 SCC -248 and Ajay Hasia V. Khalik
Mujib Sehravardi (1981) 1 SCC-722 laid
down that where there is arbitrariness in
State action, Article 14 springs in and
judicial review strikes such an action
down. Every action of the executive
authority must be subject to rule of law
and must be informed by reason. So,
whatever be the activity of the public
authority, it should meet the test of Article
14. Judicial review is permissible only on
the established grounds of mala fide,
arbitrariness, or unreasonableness of the
Wednesbury variety as has been laid
down in Delhi Science Forum V. Union
of India (1996) SCC-260; New Horisons
Ltd V. Union of India -(1995) 1 SCC478; Asia Foundation and Constructions
Ltd. Vs. Trafalgar House Construction (I)
Ltd. (1997) 1 SCC -738; Tata Cellular V.
Union of India-(1994) 6 SCC -651;
Fertilizer
corporation
Kosigar
Union
(Regd.) Vs. Union of India, (1981) 1 SCC
-568 and Raunaq International Ltd. Vs.
I.V.R. Construction Ltd. and others
(1999) 1 SCC -492.

9. Sri Vineet Saran pointed out that
he is not challenging the application of
Article 14 of the Constitution if the action
of the State or its instrumentality is
arbitrary and discriminatory at the stage
of granting or entering into a contract. He
clarified that what he submits is that after
a contract has been validly entered into,
the breach of the various terms and
conditions of the contract, if any, cannot
be made the subject matter of writ
jurisdiction. Emphatic reliance was placed
by both the parties on the observations
made by the apex court in the case of M/S
Mahabir Auto Stores (supra). In that case,
it has been laid down with all specificity
that the State acts in its executive power
under Article 298 of the Constitution in
entering or not entering in contracts with
individual parties, Article 14 of the
Constitution would be applicable to those
exercises of power. Therefore, the action
of the State organ under Article 14 can be
checked.
But,
Article
14
of
the
Constitution cannot and has not been
construed as a charter for judicial review
235 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
of state action after the contract has been
entered into, to call upon the State to
account for its actions in its manifold
activities by stating reasons for such
actions. A close reading of the aforesaid
decision would make it clear that the
operation of Article 14 comes into place
only at the stage of entering or not
entering in contracts with individual
parties and once the contract has been
entered into, the rights of the parties shall
be governed by the terms and conditions
to which they are subject under the
agreement.

10. On the strength of the aforesaid
permise Sri Vineet Saran assiduously
argued that the present petition under
Article 226 in not maintainable for the
breach, if any, of the terms of the
agreement as the proper remedy of the
petitioner, if at all, available is to file a
civil suit for damages. This aspect of the
matter may appropriately be dealt with
raised in this petition.

11. The petitioner undoubtedly is
receiving supplies for selling MS and
HSD
under
an
agreement
dated
26.12.1972 (Annexure 2). An unfettered
discretion has been conferred upon the
respondent-company to suspend the sale
and supply of the aforesaid items under
clause 9(s) if there is breach of the
agreement. The impugned orders dated
19.12.1999 (Annexure 1) and 5.1.2000,
(Annexure S.A.-1) have been passed for
the stoppage of supply and sale at the
retail outlet of the petitioner primarily on
the ground that the MS sample taken on
29.11.1999 did not conform to the RON
test, meaning thereby the MS which was
being sold at the retail outlet of the
petitioner was adulterated. There is no
dispute about the fact that the parties are
governed by the terms of the agreement as
well as the Control Order, 1998 made in
exercise of power conferred under Section
3 of the Essential Commodities Act. The
expression 'adulteration' as defined in the
Control
Order,
1998
means
the
introduction of any foreign substance into
motor spirit/high speed diesel illegally/
unauthorisedly with the result that the
product
does
not
conform
to
the
requirement indicated in Schedule 1. The
expression
'malpractice'
includes
'adulteration'. If the MS sample was
found to be adulterated it would be a case
of 'mal practice' on the part of the
petitioner
and
in
that
event
the
respondent-company is entitled to take
action under clause 9(s) for breach of the
terms of agreement.

12. A factual aspect of the
controversy has been raised in this writ
petition that the MS sample of the
petitioner has withstood the density test
and since the respondent - company does
not have the equipment to check RON the
petitioner cannot be blamed if there is any
variation of RON in the MS sample. It has
been scientifically proved on chemical
analysis that the density level of diesel is
higher than that of Kerosene and density
of kerosene is higher than that of petrol
and, therefore, if kerosene is mixed with
diesel the density of such adulterated
product would be less than the density of
pure diesel. However, by mixing some
other article it is possible to again raise
the density of this adulterated product to
the level of diesel. Therefore, by mixing
more than on item to diesel its density can
be brought back to the prescribed
standard. Similarly density of petrol will
become higher by mixing kerosene but it
can be brought back to the prescribed
standard by mixing another item having
3All] M/s Kamla Motors &Engineering Works Gorakhpur V. I.B.P. Co. Ltd. 236
lower density. In Krishna Kumar V.
Senior
Superintendent
of
Police
Bulandshahr -1998 (36) ACC-630, a
Division Bench of this Court examined
the matter and observed that it can never
be the intention of legislature that even
though two or more foreign substances
have been mixed with diesel but if the
product so made conforms to the density
standard it should not be treated as a
malpractice or that it does not amount to
violation of the provisions of the Control
Order. The observations of the Division
Bench in this regard may profitably be
quoted as follows:

".....To our mind the correct and
logical way to interpret Clause 2(a) will
be to divide it into two parts. The
introduction of any foreign substance in
petrol or diesel illegally/unauthosedly
simplicitor would amount to adulteration
even though the product may conform to
density
standard
as
mentioned
in
Scheduled 1 of the Control Order. If the
product does not conform to the density
requirement indicated in Schedule 1 it
will also amount to adulteration. In order
to find out whether any foreign substance
has been mixed with petrol or diesel it is
absolutely necessary perform other tests
like determination of flash point, recovery
at different temperatures, viscosity and
flow etc. ...."

13. The contention raised on behalf
of the petitioner that it is not responsible
for the failure of the sample to meet the
RON specifications cannot be accepted on
the mere ground that the RON facilities
are not available to the respondentcompany and that the sample was taken
from the MS, as supplied by the
respondent-company. This submission is
wide off the mark. Besides the density test
RON test, of late, has come to be
specified in Schedule 1 of the Control
Order,
1998.
RON
test
is
almost
anthicated modern test to gauge the purity
of the product. It is one of the tests
specified in Schedule 1 to ascertain the
quality of the petroleum products. In
paragraph of the counter affidavit of the
respondent-company
it
has
been
specifically mentioned that though the
IOC at Allahabad has no facility to under
take RON test, samples collected from the
retail outlet of the petitioner were sent to
Delhi Terminal Laboratory, New Delhi of
the Indian Oil Corporation which has the
facility to undertake the RON test. As per
Schedule 1 of the Control Order, 1998,
RON should be 87 whereas the samples
drawn from the retail outlet of the
petitioner, as tested with the RON
specification, was found to be 85 as
would be apparent from the letter of Dy.
Manager (Lab), Indian Oil Corporation
Ltd.,
(Marketing
Division),
dated
14.12.1999, Annexure C.A. 1. As many as
7 samples of different dealers were sent
for RON test. Out of seven samples, the
sample number L-3594 concerning the
petitioner-establishment did not meet the
requirement of RON as it was 85.0. From
this fact, it was concluded that the sample
of the MS taken at the retail outlet of the
petitioner
was
adulterated.
The
submission on behalf of the petitioner that
it is not guilty of malpractice as the
sample was taken from the supplies made
by the respondent-company is otiose. The
Government Corporations, such as the
respondent, are not expected and will not
supply
sub-standard
or
adulterated
material and it can be presumed that the
product supplied by them would by pure
and would conform to the standards laid
down. If the supplies made by the
respondent-company were deficient in
RON specification, they should have been
in respect of all the seven dealers and not
237 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
only in case of the petitioner. Under
clause 9(e) of the agreement, it is for the
dealer to take all reasonable precautions
against the contamination or adulteration
of the products supplied by the company.
The report of the Laboratory to the effect
that the MS sample is adulterated is
sufficient to hold that the petitioner has
indulged in malpractice, an expression,
which has been defined in the Control
Order, 1998. In Krishna Kumar's case
(supra, it has been held that the report of
the analyst is conclusive and admissible
without any proof.

14. A faint suggestion was made on
behalf of the petitioner that the MS
sample taken from the outlet of the
petitioner is in conformity with the
executive orders, issued by the State
Government,
and
the
circular
letters/guidelines
issued
by
the
respondent-company and, therefore, the
petitioner cannot be branded of having
committed any malpractice. The various
Government orders and the guidelines
which have been brought on record and
have been relied upon by the learned
counsel for the petitioner came into being
prior to the commencement of Control
Order, 1998. Since the RON test has been
specified and has come into force w.e.f.
28.12.1998,
the
earlier
orders
and
guidelines are of no consequence and
have to be ignored. A statutory rule is also
a delegated legislation and its position
came to be explained in a Constitution
Bench decision of the apex court in State
of U.P. V. Babu Ram Upadhyay -A.I.R.
1961 SC -751 in which it was observed
that the rule made under a statute must be
treated for all purposes of construction or
obligation exactly as if they were in the
and are to be of the same effect as if
contained in the Act, and are to be
judicially noticed for all purposes of
construction or obligation. Similar view
was taken in the case of State of Tamil
Nadu V. M/S Hind Stores -A.I.R. 1981
SC -711. The provisions of the Control
Order 1998 shall, therefore, have the
overriding effect and prevail over the
earlier Government order, circulars and
guidelines.

15. This court cannot act as an
appellate authority and examine the
details of terms of contract. The primary
concern of this court is to see whether
there is any infirmity in the decision
making process. The above observations
are fortified from the decision of the apex
court in Sterling Computers V. M.N.
Publications Ltd. and others-A.I.R. 1996
SC-51. M/S Mahabir Auto Stores
(supra) was a case where there was an
abrupt stoppage of supply of lubricants to
the dealer by the Indian Oil Corporation.
No notice or intimation was given to the
dealer and it was in these circumstances
that the action of the company was held to
be arbitrary. In the instant case, the action
of the respondent-company cannot be
faulted on any ground as the supply and
sale of MS and HSD have been suspended
for a specified period of 45 days. The
impugned order, which is short-lived in
nature, has been passed as a corrective
measure with a view to act as a deterrent
for others. If the malpractices of the
dealers are ignored, in that event, they
would feel emboldened and resort to
further
malpractices
including
adulteration, to the serious detriment of
the public interest. Where the decision has
been taken bona fide and a choice has
been
exercised
on
legitimate
consideration, and not arbitrarily, there
does not appear to be any reason why the
court should entertain a petition under
3All] M/s Kamla Motors &Engineering Works Gorakhpur V. I.B.P. Co. Ltd. 238
Article 226 of the Constitution of India.
Any other inference in the cases like the
present one would be seriously jeopardise
the public interest.

16. We would be doing well in not
pronouncing upon any on the several
contentions raised in the writ petition by
both the parties and would feel satisfied
by merely stating that since the MS
sample did not conform to the RON
specification,
the
respondent-company
was well within its rights to suspend the
supply and sale under clause 9(s) of the
agreement. As a matter of fact, a complete
answer to the various submissions made
on behalf of the petitioner is to be found
in a decision of the apex court in State of
U.P. and others V. Brij and Roof India
Co. Ltd. -1996 (6) SCC -22 in which the
controversy was dealt with in the light of
the different set of facts but nevertheless,
the observations made by the apex court
are applicable on all fours to the facts of
the present case. In that case, the
controversy raised was with regard to a
private contract. It was observed that the
remedy of writ petition under Article 226
of the Constitution adopted by the
respondent of that case was misconceived.
He was not entitled to any relief in the
writ jurisdiction, firstly for the reason, the
contract between the parties is a contract
in the realm of private law, it is not a
statutory contract. It is governed by the
provisions of the Contract Act, or, may be
also by certain provisions of Sales of
Goods Act. Any dispute relating to
interpretation of the terms and conditions
of such contract cannot be agitated and
could not have been agitated in a writ
petition. Secondly, where there has been a
breach of the terms of the contract, it not a
matter to be agitated in the writ petition.
That is again a matter relating to the
interpretation of a term of contract and
should be agitated before Arbitrator or the
civil court, as the case may be.

17. A short and swift reference may
also be made to the submission of the
learned counsel for the petitioner that
there was hardly any justification for
suspending the supply and sale of HSD as
no sample of this oil was taken or was
found to be adulterated. This submission
does not hold good for one simple reason
that
the
agreement
in
question
is
composite one. The right to receive
supply and sale of MS and HSD emanates
from the same agreement and in the
agreement, it has been mentioned that if
there is breach of any one of the
conditions, necessary action against the
dealer may be taken under clause 9(s) of
the agreement. Since MS sample failed to
withstand the test of scrutiny with regard
to RON specification, supply and sale of
HSD covered by the same agreement
were also suspended. The two articles of
supply and sale cannot be aggregated as
the rights of the petitioner flow in respect
of both the commodities under one and
the same agreement.

18. In view of the various
observations made in the aforesaid case,
the present writ petition for the relief's
claimed is not maintainable. The proper
remedy of the petitioner is to approach the
civil court to challenge the alleged illegal
action of the respondent-company and
claim damages, if it is so advised.

19. In the conspectus of the above
facts, the writ petition turns out to be
devoid of any merits and substance and is
accordingly dismissed.
Petition Dismissed.
239 INDIAN LAW REPORTS ALLAHABAD SERIES [2000
25,*,1$/ -85,6',&7,21
25,*,1$/ -85,6',&7,21
&,9,/ 6,'(
&,9,/ 6,'(
'$7(' $//$+$%$'
'$7(' $//$+$%$'
%()25(
%()25(
7+( +21·%/( 68'+,5 1$5$,1 -
7+( +21·%/( 68'+,5 1$5$,1 -

&LYLO 0LVF :ULW 3HWLWLRQ 1R RI

6UL 1DQKH\ .KDQ
«3HWLWLRQHU
9HUVXV
7KH
,VW
$GGLWLRQDO
'LVWULFW
-XGJH
)DUUXNKDEDG 2WKHUV «2SS 3DUWLHV

&RXQVHO IRU WKH 3HWLWLRQHU
6KUL +DLGHU +XVDLQ
6KUL *19HUPD
&RXQVHO IRU WKH 5HVSRQGHQWV
6KUL 0' 6LQJK
6&

3URYLQFLDO 6PDOO &DXVH &RXUWV $FW UHDG
ZLWK (YLGHQFH $FW 6 DQG *HQHUDO
&ODXVHV $FW 6 'HIDXOW LQ SD\PHQW RI
DUUHDUV RI UHQW 3UHVXPSWLRQZKHQ WR EH
GUDZQ%RWK WKH &RXUWV KHOG WKDW WKHUH
ZDV QR UHIXVDO WR DFFHSW WKH PRQH\
RUGHU
DOOHJHG
WR
KDYH
EHHQ
VHQW E\
SHWLWLRQHU02 UHDFKLQJ ODQG ORUG DIWHU
SHULRG SUHVFULEHG
+HOG
$GPLWWHGO\ WKH SHWLWLRQHU KDG UHPLWWHG
WKH PRQH\ RUGHU IRU D VXP RI 5V
 WKH GHPDQG PDGH E\ WKH SODLQWLII
UHVSRQGHQW ZLWKLQ RQH PRQWK IURP WKH
GDWH RI VHUYLFH RI QRWLFH KH FDQQRW EH
KHOG WR EH GHIDXOWHU
2QFH WKH WHQDQW KDV UHPLWWHG WKH PRQH\
DQG WKHUH LV QRWKLQJ WR VKRZ WKDW WKH
UHPLWWHU FROOXGHG ZLWK WKH SRVWPDQ ZKR
JRW WKH PRQH\ RUGHU UHWXUQHG WR KLP RU
WKHUH
LV
DQ\
RWKHU
FLUFXPVWDQFH
LQGLFDWLQJ
WKDW
WKH
PRQH\
RUGHU
LI
UHWXUQHG
IRU
RWKHU
UHDVRQV
WKDQ
WKH
UHPDUNV
PDGH
E\
WKH
SRVWPDQ
WKH
SUHVXPSWLRQ
ZLOO
EH
WKDW
WKH
PRQH\
RUGHU ZDV WHQGHUHG WR WKH DGGUHVVHH
7KH SHWLWLRQHU KDG VHQW WKH PRQH\ RUGHU
ZLWKLQ WLPH LQ SXUVXDQFH RI WKH GHPDQG
QRWLFH 7KHUH PD\ QRW EH DQ\ LQWHQWLRQ
XQOHVV
WKHUH
LV
DQ\
HYLGHQFH WR WKH
FRQWUDU\ WKDW KH ZDQWHG WKDW WKH DPRXQW
UHPLWWHG E\ WKH PRQH\ RUGHU VKRXOG QRW
EH UHFHLYHG E\ WKH DGGUHVVHH
7KH
SHWLWLRQHU
KDG
ILOHG
WKH
FRXSRQ
7KHUH DUH WKUHH SDUWV RI WKH PRQH\ RUGHU
IRUP 2QH LV UHWXUQHG WR WKH UHPLWWHU EXW
WKH RWKHU SDUW ZKLFK LV VHQW WR WKH
DGGUHVVHH ZDV QRW RQ WKH UHFRUG 7KH
SRVWDO UHPDUN ZDV WKDW LW ZDV UHIXVHG ,I
WKH DGGUHVV ZDV LQFRPSOHWH LW FRXOG EH
UHWXUQHG
WR
WKH
UHPLWWHU
ZLWK
WKH
HQGRUVHPHQW
WKDW
WKH
DGGUHVV
ZDV
LQFRPSOHWH 7KH FRXUWV EHORZ ZLWKRXW
FRQVLGHULQJ WKLV DVSHFW KHOG WKDW WKH
DGGUHVV ZDV LQFRPSOHWH
&DVH /DZ GLVFXVVHG
$:5 $,5 6& $:5
 $/- $,5 $,,
835&&

$5&

$5& $5& $5&
 $,5 $,, $,5 6&
$,5 $,, $,5 'HO

By the Court

1. The petitioner is aggrieved
against the decree for recovery of arrears
of rent, ejectment and damages passed
against him by the courts below.

2. The plaintiff-respondents no.3
and 4 filed S.S.C. Suit No. 115 of 1990
against the petitioner for recovery of
arrears of rent, ejectment and damages
with the allegations that the petitioner was
tenant at monthly rent of Rs.100/- and Rs.
30/- per month as electric charges. He had
not paid rent for the period 1.9.1979 to
30.6.1980 amounting to Rs. 1000/- and
electric charges amounting to Rs. 300/-.
He
sent
a
notice
dated.9.7.1980
demanding this amount which was served
on him on 11.7.1980 but inspite of service
of notice he did not pay the amount. The