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IN THE SUPREME COURT OF INDIA  CIVIL ORIGINAL JURISDICTION  

WRIT PETITION (CIVIL) NO 675  OF 2013     

SEEMA UPADHYAY               ..Petitioner   

VERSUS  

UNION OF INDIA THR. THE SECRETARY, MIN.  OF PETROLEUM AND NATURAL GAS AND ORS      ..Respondents  

J U D G M E N T   

Dr D Y CHANDRACHUD, J  

1 Invoking the jurisdiction of this Court under Article 32 of the Constitution,  

the petitioner seeks the following reliefs:  

“a) … a writ, order or direction in the nature of mandamus  

commanding the respondents to get the matters of the known  

and reported cases of adulteration operated by the Mafias  

referred herein above, investigated through an independent  

agency preferably CBI;  

b) … appropriate writ of mandamus commanding the  

respondents to directly transfer the cash subsidy in the bank  

accounts of the beneficiaries of the kerosene oil on the basis  

of their Adhar Card or through public distribution system or  

some other full proof mechanism;..”  

REPORTABLE

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2 On 23 August 2013 when the petition came up for preliminary hearing,  

the following directions were issued:  

“From para 5 onwards the writ petition makes several  

allegations against Devender Agrawal and one of his relative  

Dharmendra Agarwal. The petitioner has not however chosen  

to implead the said two parties as party respondents to the  

petition. At the oral request of the petitioner, we permit the  

petitioner to implead the said two persons as party respondent  

Nos. 2 and 3 respectively.   

Amended writ petition shall be filed within one week.   

Notice shall issue only after amended petition is filed.”  

The above order indicates that a substantial part of the factual basis of the  

petition relates to Devender Agrawal and his relative, Dharmendra Agarwal.  

This is evident from paragraph 9 of the writ petition, which is extracted below:  

“9. That Shri Agrawal owns a dozen of petty dealers of diesel  

and about a dozen of S.P.company petrol pumps in his name  

or in the names of near relations while the cost of one such  

petrol pump is about Rs 1 to 1.50 crores.  

The names of the main petty diesel dealers are:  

1) Mukesh Automobiles, Hathras Jalesar Marg, Gangoli  

Hathras in the fraudulent name of Mukesh Kumar S/o  

Mahendra Pal Agrawal. Subsequently it was transferred to  

Nagla Salem (Sadabad Behdoi Marg) All formalities are  

done by Devender Agrawal @ Mukesh Kumar whereas no  

allotment can be made in the alias name and the same is  

contrary to the guideline of the Petroleum Ministry.  

2) Petty Diesel dealer license obtained in the name of Pooran  

Singh S/o Shri Chandrapal Singh Singh at Jalesar Marg,  

Hathras Junction.  

3) Petty Diesel dealer license at Hathras-Jalesar Marg, village  

Bhopatpur, in the name of Rakesh Agrawal brother of  

Devender Agrawal.  

4) Petty Diesel dealer at Hathras-Sadabad Marg, near  

Kachhpura (Bisana) in the name of Manohar Lal.   

5) Petty Diesel dealer license at Hathras-Aligarh Marg near  

Hanuman Chowki, Village Basai Qaji, obtained fraudulently

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in the  name of Santosh Kumar S/o Netrapal,  servant of  

Devendra Agrawal.  

6) Petty Diesel dealer license in Qasba Mindu at Hathras in  

the name of Suresh Chandra and partner Shri Deepak  

Kumar. Deepak Kumar is the brother of the wife of  

Devendra Agrawal.  

7) Petty Diesel dealer license at Hathras-Jalesar Marg, at  

Nagla Islamia in the name of Praveen Kumar S/o Gopal  

Dass Agrawal. Praveen Kumar is the brother of the wife of  

Devendra Agrawal.  

MAIN COMPANY PETROL PUMPS  

I) Village Utara Block Sasni, District Mahamayanagar in  

the name of Prem Prakash Sharma.  

II) Devende Automobile, Ladpur Block, Hathras, in the  

name of Deepak Agrawal. Tin No.0962701283C.   

Depak Kumar is the brother of the wife of Devendra  

Agrawal. He also has Petty a Diesel License at Qasba  

Maindu.   

III) Village Keshopur-Maho Block Hathras in the name of  

Santosh Kumar, servant of Devender Agrawal. He also  

has a license for Petty Diesel dealer at Village Basai,  

near Hanuman Chowki.  

IV) Rahul Automobiles, Barwana-Hathras Junction to  

Jalesar Road in the name of Shrawan Kumar Agrawal  

Tin No.09127502025C. Shrawan Kumar is the brother  

of the wife of Devender Agrawal.  

V) Shrawan Kumar Automobile in the name of Devender  

Agrawal at O Marora (Kajrauth) Block Iglas, District  

Aligarh.  Tin No.09127400903.  This Tin No. is in the  

name of Jai Maa Durga Automobile.  Hatheas  

registered in the name Devender Agrawal.  

VI) Mayank Automobiles Sonai (Aligarh) owned by  

Smt.Renu Agrawal W/o Rakesh Agrawal, brother of  

Devender Agrawal.  

VII) Pradeep Automobiles, Khtauli-Katailiya (Sasni), in the  

name of Ramji Lal Agrawal and Pradeep Kumar Tin  

No.09327401402.  

VIII) Qasba Vijaygarh, Block Akrabad, Aligarh in the name  

of Jai Kishore Agrawal, relation of Devender Agrawal.  

IX) Chandan Automobile, Kuktai, Sadabad-Agra Marg,  

near Mandi Samiti in the name of Devender Agrawal.  

There are two Petty Diesel dealer licenses in the name of  

Deepak Agrawal – one at Maindu Hathras and the other in the  

name of Devender Automobiles at Ladpur-Hathras whereas  

two such licenses in the name of one person is contrary to the  

rules.”   

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The allegation is that Devender Agrawal owns multiple dealerships for the  

distribution of petroleum products, and they are held in the names of persons  

closely related to or associated with him. It is in this view of the matter that this  

Court considered it necessary to allow the impleadment of the aforesaid  

individual against whom allegations have been made. On 11 March 2015 the  

Solicitor General was requested to assist the Court.  

3 On 26 August 2016 this Court allowed the impleadment of the Ministry of  

Petroleum and Natural Gas. In the order of this Court,  reference was also made  

to the allegations contained in paragraph 9 of the writ petition.  This Court  

directed a fact finding inquiry into the averments contained in paragraph 9, by  

an officer of the rank of Joint Secretary to the Government of India, to be  

nominated by the Secretary in the Ministry of Petroleum and Natural Gas.  The  

relevant part of the order reads thus:  

“Having heard learned counsel for the parties, we are inclined  to direct a fact finding enquiry into the averments made in the  above paragraph, by an officer of the rank of Joint Secretary to  Government of India, to be nominated by the Secretary,  Ministry of Petroleum and Natural Gas. The Enquiry Officer, so  appointed, shall look into the allegations, made in para “9” and  submit a report, after holding an enquiry into the relevant facts.  The petitioner may furnish the details and supporting materials,  if so advised, to the Enquiry Officer within two weeks from  today. The Enquiry Officer shall be free to take such assistance  of the licensing authorities concerned who have issued  licences to the dealers concerned as may be necessary.  Enquiry Officer shall also be assisted in all respects by the  District Administration of the State Government. Needless to  say that the Enquiry Officer shall issue a notice to respondent  NO.2- Devender Agrawal alias Mukesh Kumar/Agrawal for  purpose of holding an enquiry and take into consideration the  materials that may be placed on record by him while drawing  his conclusion.”  

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4 The second aspect which has been dealt with in the order of this Court  

dated 26 August 2016 is the adulteration of petroleum products. Under  

paragraph 8A of the Kerosene (Restriction on Use and Fixation of Ceiling Price)  

Amendment Order, 2007,  all kerosene sold in India is required to be blended  

with a marker at five parts per million (ppm) concentration with a view to  

preventing its diversion or use for adulteration of other petroleum products. This  

Court directed that an affidavit be filed by the Ministry of Petroleum and Natural  

Gas to clarify whether the petrol and diesel vending machines are sensitive to  

the above marker and would decline to dispense the product if the same is  

adulterated by the use of kerosene. On this aspect the order dated 26 August  

2016 is extracted below:  

“Mr. Kumar has also drawn our attention to Kerosene  (Restriction on Use and Fixation of Ceiling Price) Amendment  Order, 2007. He submits that in terms of Rule 8A of the said  Order all kerosene sold in India, whether under the public  distribution system or parallel marketing system, has to be  blended with a marker at five parts per million (ppm)  concentration with a view to preventing its diversion or use for  adulteration of other petroleum products. He submits that  according to his instructions kerosene is now being sold  through public distribution systems and parallel marketing  systems duly blended with marker as required under the said  Rule. He is, however, unable to say whether the petrol and  diesel vending/dispensing machines, installed in the petrol and  diesel vending stations, are sensitive to the said marker and  whether the machines refuse to dispense the product if the  same is adulterated by use of kerosene. He submits that given  time, he will file an additional affidavit of the concerned officer  to clarify the position. He may do so. The affidavit shall also  clarify whether technology today permits use of any machine  that can detect adulteration of the product and decline to  dispense the same in case it is adulterated. The affidavit may  also indicate whether “test kit” referred to in sub-clause 5 (ii)  (ka) of clause 2 of the Order, mentioned above, is a part of the  dispensing machine or is independent of the same.”  

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5 In terms of the directions issued by this Court an inquiry has been  

conducted by the Joint Secretary in the Ministry of Petroleum and Natural Gas.  

A copy of the report has been placed on record.  The inquiry has not resulted  

in any conclusive determination on the allegations set out in paragraph 9 of the  

petition.   

6 Basically, the issue as to whether the second respondent owns multiple  

dealerships or outlets for petroleum products, in violation of the applicable rules  

and regulations, has to be determined by the oil company or companies  

concerned with the issue. None of the oil companies were impleaded to these  

proceedings.  In their absence,  it would not be possible for the Court to make  

any factual determination. Whether an individual holds a dealership or outlet  

benami would turn on an appreciation of factual material which cannot be  

inquired into in the exercise of the jurisdiction under Article 32.  Consequently  

all that we observe is that it would be open to the petitioner to bring such  

material as she has in her possession to the attention of the concerned oil  

companies for such action as is deemed necessary. We clarify that we have  

not expressed any opinion on the merits of such a claim, which is left open to  

be determined in accordance with law, after hearing all necessary parties.   

7 On the second aspect of the matter which has been adverted in the order  

of this Court dated 26 August 2016, it would be necessary to set out the  

contents of the affidavit filed before this Court on 6 October 2016 by the Ministry

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of Petroleum and Natural Gas. In so far as is material, the affidavit contains the  

following averments:  

“a. With regard to the issue of doping of PDS Kerosene with  

marker, it may be informed that Ministry of Petroleum & Natural  

Gas vide letter No.P-11013/5/2006-Dist.dated 15.01.2007, had  

advised the Oil Manufacturing Companies (OMCs) regarding  

amendments to MS & HSD control order, 2005 and Kerosene  

Control Order, 1993 enacted and published through Gazette  

notifications, wherein all Kerosene sold in India, whether under  

PDS or parallel marketing system, was to be blended with  

marker at five parts per Million (ppm) concentrations with the  

objective of preventing its diversion or adulteration of MS/HSD.  

Accordingly, doping of kerosene with Marker was introduced  

throughout the country.  

b. Subsequently, in the month of September, 2008, it came to  

the notice of Vigilance Department of Indian Oil Corporation  

Ltd. (IOCL), Northern Region that a brown chemical powder,  

provided to them by an informer could be used to negate the  

efficiency of Marker System. This was also corroborated in the  

findings in the Lab Test conditions. Since Marker System was  

found launderable, it was decided to discontinue the existing  

Marker System with effect from 01.01.2009.  

c. Upon discontinuation of doping of marker in PDS kerosene  

with effect from 01.01.2009, necessary amendments in the  

Motor Spirit and High Speed Diesel (Regulation of Supply,  

Distribution and Prevention of Malpractices) Order and the  

Kerosene (Restriction on Use and Fixation of Ceiling Price)  

Order were made.   

d. The Public Sector Oil Marketing Companies, (OMCs) have  

further informed that they have interacted with all the major  

Dispensing Unit manufacturers in India and, as per the  

feedback received, the current Dispensing Unit Manufacturers  

do not possess readymade technology for detecting  

adulteration during dispensation of fuel. It has been additionally  

informed that the ‘test kit’ for detection of marker was not a part  

of dispensing unit. OMCs have clarified that ‘test kit’ is  

essentially a chemical test which helps in detecting presence  

of marker doped kerosene (i.e., sample test indicates positive  

result when its colour changes to pink).”  

The affidavit has also sets out the  steps which have been taken by public sector  

oil manufacturing companies to conduct regular checks on the quality and

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quantity of petrol and diesel being supplied by retail outlets to the public at large.   

These are as follows:  

“a) As a constant drive, the PSU OMCs undertake regular and  

surprise inspection of Retail Outlets and take action under the  

provisions of the Marketing Discipline Guidelines (MDG) and  

Dealership Agreements against the outlets found indulging in  

irregularities/malpractices like adulteration, short delivery etc.  

Further, the MDG provides for termination of outlet in the first  

instance itself for serious malpractices like adulteration,  

tampering of seats and unauthorized fittings/gears in the  

dispensing units and graded penalties for other  

malpractices/irregularities.  

b) The Motor Spirit and High Speed Diesel (Regulation of  

Supply, Distribution and Prevention of Malpractices) Order,  

2005 issued by the Central Government under Essential  

Commodities Act, 1955 provides for punitive action against  

malpractices such as adulteration. Provisions are also  

available in the contractual documents and administrative  

guidelines to prevent malpractices in the trade of petroleum  

products.  

c) A Quality Control Cell is also functional in each of the Public  

Sector OMCs which carries out surprise inspections at Ros for  

checking various irregularities including adulteration. It may be  

appreciation that during the last three years and current year  

(upto June 2016), OMCs have carried out 5,61,796 number of  

inspections at their Ros across the country.  

d) Industry Transport Discipline Guidelines (ITDG) have been  

revised and strengthened in 2014 by making penal action more  

stringent. On first instance of established pilferage, Tank Truck  

is blacklisted and on second instance transportation contract is  

terminated and all TTs under that contract are blacklisted for  

two years across industry automatically through e-portal.   

There is a similar provision of penal action in case any  

tampering with Vehicle Tracking System (VTS_.  

e) Furthermore, OMCs have resorted to other initiatives to  

prevent irregularities in Retail outlets and Monitoring of  

movement of tank trucks through Global Positioning System  

(GPS). It is submitted that as on 01.09.2016, there are 52653  

number of Retail Outlets across India, out of which 18586  

number of Retail Outlets are automated and 13211 number of  

Retail Outlets already compiled with the standard of “No  

Automation No Operation” (NANO).  The advantage of Retail  

Outlets complied with Standard NANO is that the dispensing  

unit becomes automatically non-operative if any efforts for

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manipulation of dispensing unit or storage tank are made.  This  

will ensure OMCs to keep a track of the activities at the Retail  

Outlet. Under this initiative, tank stocks and sales of each  

dispensing unit can be tracked online and analysed.”  

Moreover, it has been stated that the 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 Ceiling Price) Order, 1993  

have made provisions to enable the States and Union Territories to take action  

against malpractices.  Moreover, it has been stated that the Ministry intends to  

implement the direct transfer scheme in kerosene in identified districts of  

different states on a pilot basis.    

8 These are essentially matters of policy. The Union Ministry of Petroleum  

and Natural Gas is seized of the issue.  Steps have been taken from time to  

time, as elaborated in the affidavit filed in this Court.    

9 While we have dealt with the two grievances of the petitioner, we may  

also note that that in the counter affidavit which has been filed in these  

proceedings by the second respondent, it has been stated that the petition is  

not a genuine recourse to the jurisdiction in public interest.  It has been stated  

that the spouse of the petitioner and the second respondent contested elections  

in 2007 and 2012 to the Legislative Assembly in Uttar Pradesh and the second  

respondent was returned as the elected candidate.  A public interest litigation  

was filed before the High Court of Judicature at Allahabad in which, it has been

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submitted, the allegations were identical to those contained in the writ petition  

in the present case.  The writ petition before the High Court was dismissed on  

6 April 2011.  From the averments contained in the counter affidavit, the  

defence that the petition has been instituted for reasons other than a genuine  

effort to espouse an issue of public interest cannot be discarded.  Be that as it  

may, we are not inclined to keep the proceedings pending before this Court any  

further in view of what has been stated in the earlier part of this judgment.    

10 The petition shall, accordingly, stand disposed of.      

...........................................CJI                  [DIPAK MISRA]        

                                                    ...........................................J                  [A M KHANWILKAR]      

                                                      ...........................................J  

               [Dr D Y CHANDRACHUD]    New Delhi;  April 05, 2018