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Madhya Pradesh High Court · body

2014 DIGILAW 1559 (MP)

Rameshwardayal Mangal v. State of M. P.

2014-11-28

P.K.JAISWAL, S.R.WAGHMARE

body2014
Judgment 1. Shri A.S. Kutambale, learned Senior Counsel with Shri Umes Gajankush, learned counsel for the appellant. Ms. Mini Ravindran, learned Dy. Govt. Advocate for the respondents -State. They are heard. This intra-Court appeal has been filed against the order dated 7-9-2011, passed in W.P. No. 8245 of 2009, whereby learned Writ Court affirmed the orders passed by the Appellate and Revisional Authority by which dealership licence had been cancelled. 2. Brief facts of the case are that the appellant during the relevant time was having a licence to run the petrol pump issued under the provisions of M.P. Motor Spirit and High Spirit Diesel Oil (License and Control) Order, 1980 (for short "Control Order, 1980") and was accordingly running a petrol pump. A sample was taken from his petrol pump on 13-6-1995 which was received by the Laboratory on 17-6-1995 and as per the laboratory report dated 27-6-1995, the said sample failed to meet the requirement of final boiling point in the distillation test, therefore, the appellant was issued the show cause notice dated 21-8-1995 for cancellation of the licence and forfeiture of the security amount The appellant submitted the reply dated 7-10-1995, thereafter, the Collector had passed the order dated 23-6-2003 cancelling the licence and forfeiting the security amount. The appeal preferred by the appellant before the Commissioner as well as the revision preferred before the State were dismissed by order dated 24-9-2003 and 21-7-2009 respectively. 3. The learned writ Court considering the fact that the report of Distillation Test by the laboratory clearly shows that the sample taken from the appellant's petrol pump failed to meet the requirement of final boiling point in distillation test. The test was found to be negative. The Collector has passed a detailed reasoned speaking order, cancelling the licence of the appellant and forfeiting the security amount under Clauses 11 and 15 of the Control Order, 1980. It was held that the authority has not committed any illegality or material irregularity in passing the aforesaid order and held that no interference is required in respect of the ground that procedure has not been followed. 4. It was held that the authority has not committed any illegality or material irregularity in passing the aforesaid order and held that no interference is required in respect of the ground that procedure has not been followed. 4. It is further submitted that as per record, the sample taken by the appellant was sent to the laboratory where the test was performed, thereafter, the appellant was given a show cause notice to which he had submitted the reply and he was also afforded opportunity of hearing before the Collector. 5. In respect of non-compliance of the requirement of Clause 11 of the Control Order 1980, the writ Court passed the following order:-- "(9) The learned counsel appearing for the petitioner has raised the ground relating to non-compliance of the requirement of Clause 11 of this Control Order 1980 as amended by Notification dated 15th April, 1982 in respect of obtaining the opinion of the oil company with whom the agreement has been made by the licensee, but no such specific ground was raised by the petitioner before the original appellate or revisional authority nor such a specific ground has been raised in this Writ Petition. Therefore, the respondents had no opportunity to meet the same. Such a question of fact raised by the petitioner for the first time at the stage of final arguments cannot be gone into. Even otherwise the reply filed by the respondents indicates that a report was obtained from the oil company and thereafter the impugned order was passed. For the aforesaid reason, the judgment of this Court in the matter of M/s. Habib Nathu Owners of Diesel Pump v. State of M.P. and others, reported in AIR 1988 M. P. 283 relied upon by the counsel for petitioner does not help him. On perusal of the record, it is also noticed that no mandatory provision has been violated by the respondents. (10) The petitioner has also raised a ground that he was not allowed to cross examine the Assistant Food Officer or the laboratory Assistant, but a perusal of the order passed by the appellate authority indicates that no such prayer was made; by the petitioner before the original authority. Before this Court also the petitioner has failed to point out any such written request made before the original authority. Thus, such a ground cannot be accepted. Before this Court also the petitioner has failed to point out any such written request made before the original authority. Thus, such a ground cannot be accepted. The petitioner has also raised the issue of sending the second sample, but the record indicates that the second sample is required to be sent id the laboratory within 10 days. The sample was taken on 13-6-1995, but no prayer was made by the petitioner for resending the sample within 10 days. The original authority has noted that it was open to the petitioner himself to send the sample within 10 days to the laboratory and submit the report which he has failed to do. Thus, there is no substance in this submission of the learned counsel for the petitioner." 6. Prior to amendment, provision of Clause 11 of Control Order 1980 reads as under:-- "11. Cancellation or Suspension of Licence.--No holder of a licence issued under this order or his agent or servant or any other person acting on his behalf shall contravene any of the terms of conditions of the licence or any provision of this Order and if any such holder or his agent or servant or any person acting on his behalf contravens any of the said terms or conditions or provisions then without prejudice to any other action that may be taken against him his licence may be cancelled or suspended by order in writing or the licensing authority: Provided that no order shall be made, under this clause unless the licensee has been given a reasonable opportunity of stating his case against the proposed cancellation or suspension." 7. Learned Senior Counsel for the appellant has submitted that Rule 11 of the Control Order 1980 has been amended w.e.f. 15th April, 1982. Learned Senior Counsel for the appellant has submitted that Rule 11 of the Control Order 1980 has been amended w.e.f. 15th April, 1982. Amended provision of Rule 11 reads as under:-- In Clause 11, for the proviso, the following provisos shall be substituted, namely:-- "Provided that no order shall be made under this clause unless the licencing authority has obtained the opinion of the Oil Company with whom the agreement has been made by the license and the licensee has been given a reasonable opportunity of stating his case against the proposed cancellation or suspension: Provided further that if no communication containing the opinion of the oil, company is received within thirty days of the date of receipt of a letter to that effect under the foregoing proviso by the District Manager or an officer of equivalent rank of that Company, it shall be presumed that the Oil Company agrees with the proposed action and the licencing authority shall be free to pass such order as may be deem fit." 8. Learned Senior Counsel also drew our attention to Annexure-R/2 and submitted that the appellant is a dealer of Hindustan Petroleum Corporation Limited whereas sample was referred, to the laboratory of Indian Oil Corporation Limited. He submitted that his license was cancelled only on the ground that sample was not in according to specification. As per amended provision of Rule 11 of Control Order, 1980, the licensing authority has obtained opinion with whom the agreement has been made and sample was to sent to the Indian Oil Corporation of which appellant had entered into an agreement i.e. Hindustan Petroleum Corporation Limited whereas in the present case, as per Annexure-R/2 it is not in dispute that the sample was sent to Indian Oil Corporation Limited. 9. This question has been considered by the Division Bench of Indore Bench in the case of M/s. Habib Nathu Owners of Diesel Pump v. State of M.P. and others, reported in AIR 1988 M. P. 283. Paras 4, 5 and 6 are relevant which reads as under:-- "4. Having heard learned counsel for the parties, we have come to the conclusion that this petition deserves to be allowed. Clause 11 of the Order, which empowers the licensing authority to cancel the licence, reads as under: "11. Paras 4, 5 and 6 are relevant which reads as under:-- "4. Having heard learned counsel for the parties, we have come to the conclusion that this petition deserves to be allowed. Clause 11 of the Order, which empowers the licensing authority to cancel the licence, reads as under: "11. Cancellation or Suspension of Licence.--No holder of a licence issued under this Order or his agent or servant or any other person acting on his behalf, shall contravene any of the terms of conditions of the licence or any provision of this Order and if any such holder or his agent or servant or any person acting on his behalf contravenes any of the said terms or conditions or provisions, then without prejudice to any other action that may be taken against him, his licence may be cancelled or suspended by order in writing of the licensing authority: Provided that no order shall be made under this clause unless the licensing authority has obtained the opinion of the Oil Company, with whom the agreement has been made by the licensee and the licensee has been given a reasonable opportunity of stating his case against the proposed cancellation or suspension: Provided further that if no communication containing the opinion of the Oil Company is received within thirty days of the date of receipt of a letter to that effect under the foregoing proviso by the District Manager or an officer of equivalent rank of that company, it shall be presumed that the Oil Company agree with the proposed action and the licensing authority shall be free to pass such order as may deem fit." The only ground, on the basis of which action has been taken against the petitioner is that the sample of diesel taken from the petitioner was not according to specification. Now, the order passed by the Collector, does not, however, make any reference to the opinion of the Oil Company in question. It is also not stated in the order that the licensing authority had sought the opinion of the Oil Company and that no communication was received from the Oil Company within thirty days of the receipt of the letter seeking that opinion. Moreover, it has now come on record that the opinion of the Oil Company was that the sample was according to specification. Moreover, it has now come on record that the opinion of the Oil Company was that the sample was according to specification. It is thus clear that the licensing authority proceeded to pass an order of cancellation without caring to see whether the condition precedent for making an order under Clause 11 was fulfilled. That order cannot, therefore be sustained in law. 5. It was urged that the forfeiture of security deposit under Clause 15 of the Order was justified as the petitioner had contravened the conditions of the licence. The contention cannot be upheld. The only contravention alleged against the petitioner was that the diesel oil offered for sale by the petitioner did not conform to the prescribed standard. But this allegation was not only not founded on the opinion of the oil company in question but was also contrary to the opinion received by the licensing authority from the Oil Company. The order directing forfeiture of the amount of security deposit cannot also be sustained in law. 6. For all these reasons, this petition, is allowed. The order dated 29-11-1984 (Annexure 'R') passed by the Collector, Indore, cancelling the licence of the petitioner and forfeiting the amount of security deposit; the order dated 21-6-1985 (Annexure 'S') passed by the Addl. Commissioner, Indore, dismissing the appeal; and the order (Annexure 'V') passed by the State Government affirming the order Annexure 'S' are all quashed. In the circumstances of the case, parties shall bear their own costs of this petition. The amount of security deposit, if any, be refunded to the petitioner." 10. Considering the aforesaid, we are of the view that the licensing authority proceeded to pass an order of cancellation without caring to see whether the condition precedent for making an order under Clause 11 was fulfilled. The order passed by the Collector, does not, however, make any reference to the opinion of the Oil Company in question. It is also not stated in the order that the licensing authority had sought the opinion of the Oil Company. 11. In the case in hand, admittedly, Clause 11 was not fulfilled by the licensing authority by referring the sample to Indian Oil Corporation instead of Hindustan Petroleum Corporation Limited. The order cannot be, therefore, sustained in law. For the above-mentioned reasons, this writ appeal is allowed. 11. In the case in hand, admittedly, Clause 11 was not fulfilled by the licensing authority by referring the sample to Indian Oil Corporation instead of Hindustan Petroleum Corporation Limited. The order cannot be, therefore, sustained in law. For the above-mentioned reasons, this writ appeal is allowed. The order dated 7-9-2011, passed in W.P. No. 8245/09 and orders dated 23-6-2003 (Annexure-P/4), 24-9-2003 (Annexure-P/7) and 21-7-2009 (Annexure-P/8) are all, hereby, set aside. In the circumstances of the case, parties shall bear their own costs.