The present petition has been filed by the petitioner under Articles 14, 19 and 226 of the Constitution of India as well as under the provisions of the Marketing Disciplines Guidelines, 2005 for the following prayers :-
(A) Your Lordships may be pleased to quash and set aside the termination order dated 21.03.2012 and further be pleased to direct the respondents to restore the sales and supply of retain outlet of the petitioner.
(AA) your lordships be pleased to quash and set aside the order dated 3.1.2013 which is passed on new grounds and for which no show cause notice was given to petitioner and further be pleased to direct respondent to restore sales and supply of petitioner s retail outlet.
(B) Pending hearing and final disposal of the present Petition, Your Lordships may be pleased to stay the operation, execution, further implementation of communication dated 21.03.2012 and further be pleased to immediately restore the sales and supply of the petitioner.
(BB) pending hearing and final disposal of present petition, Your Lordships be pleased to stay operation, implementation and execution of order dated 3.1.2013 and further be pleased to direct respondent to immediately restore sales and supply of the retail outlet of the petitioner.
(C) Your Lordships may be pleased to pass such other and further order which deems to fit, just and proper in the interest of justice.
The brief facts of the case as narrated in detail are that the petitioner is having retail outlet since 50 years and on the basis of the inspection, sample was collected and it led to issuance of show cause notice and the impugned order dated 03.01.2013. Against that, Appeal was preferred which also came to be rejected as stated in the draft amendment and copy of the order of the appellate authority is also produced on record. Therefore, the present petition is filed before this Court.
Heard learned senior counsel, Shri Percy Kavin appearing with learned counsel, Shri Divyeshwar for the petitioner and learned counsel, Shri Akshay Vakil for the respondents.
Learned senior counsel, Shri Kavin has made specific contentions referring to page nos.135, 137 and also referring to the show cause notice at page no.139 and the order passed by the appellant authority and submitted that in the order of the appellate authority produced at Annexure-O, there is no reason mentioned and it suffers from some limitation. He pointedly referred to this aspect and submitted that admittedly the samples of the petitioner which were taken by the team of the respondents were examined at their laboratory and sample of the petitioner has confirmed to the standard and it is also recorded in the show cause notice as well as in the order of the appellate authority that there is some discrepancy. Learned senior counsel, Shri Kavina therefore submitted that if there was a discrepancy, at-least it should have been considered before passing impugned order referring to the past record. Therefore, he submitted that the impugned order is erroneous and the present petitioner may be admitted or allowed. Learned senior counsel, Shri Kavina has also submitted that the show cause notice has confined to the samples, whereas the order of the appellate authority has traveled beyond the show cause notice referring to the past incident or the conduct which again is not correct. He therefore submitted that the present petition may be admitted or allowed.
Per contra, learned counsel, Shri Akshay Vakil appearing for the respondents referred to the papers and has tried to submit that reference to the past has been made in view of the contentions raised by the petitioner and it cannot be said that any reliance has been placed on the past history. Learned counsel, Shri Vakil submitted that issue which has been joined that in two samples which have been taken, there is no receipt issued though numbers and other details are given is misconceived. He submitted that it is not the procedure since the sample is signed by the parties itself. He therefore submitted that when the samples have been taken in the presence of the party, who has failed to comply with the test, the impugned order cannot be said to be erroneous. He has also submitted that the Marketing Disciplines Guidelines, 2005 are required to be observed and, therefore, the impugned order is just and proper as the appeal has also been rejected. He further submitted that as per provision of Sections 14 and 41 of the Specific Relief Act, as it is a contractual matter, no relief can be granted.
In view of the rival submissions, the matter requires consideration as it will have to be considered after hearing the parties based on Marketing Disciplines Guidelines, 2005 as well as other issues raised by learned counsel, Shri Kavina with regard to the time framed for the samples and also what could be the consequence if there is a discrepancy in two samples. Admittedly sample collect and retained by the petitioner is collected by the officers of the respondents and it has remained in a sealed conditions and, thereafter, it has been examined at the laboratory of the respondents in the presence of the officers. Therefore when this sample has met with standard and admittedly there is a discrepancy, whether such a drastic step could have been taken or not, which would affect the right on the livelihood and also business. It is in these circumstances, following order is passed:-
Rule.
Interim relief in terms of Para No.9(BB) till final hearing and disposal of present petition.
Direct service is permitted.
(RAJESH H.SHUKLA, J.) Gautam Page 5 of 5