Research › Search › Judgment

Allahabad High Court · body

2017 DIGILAW 1926 (ALL)

ALKA YADAV v. STATE OF U. P.

2017-08-21

ASHOK KUMAR, TARUN AGARWALA

body2017
JUDGMENT : By the Court.—Heard Sri Kaushal Yadav, the learned counsel for the petitioner alongwith Sri Rupak Chaubey, Advocate and the learned Standing Counsel for the State. 2. The petitioner has a retail outlet of Indian Oil Corporation and is selling petroleum products since 2005 in the name of M/s K.C.Kisan Sewa Kendra, Mainpuri. On 3.1.2017, the petitioner was granted a licence of dealership for sale of High Speed Diesel Oil under the U.P.High Speed Diesel Oil and Light Diesel Oil (Maintenance of Supplies and Distribution) Order, 1981 (hereinafter referred to as the Order of 1981). 3. It appears that the newspapers started reporting short supply of petroleum products from various petroleum outlets in the district of Lucknow alleging use of an electronic chip. Serious cognizance was taken by the State Government and, the Chief Secretary, issued an order dated 2.5.2017, followed by another order dated 15.6.2017, directing constitution of a Special Investigation Team for inspection of various retail outlets in the State of Uttar Pradesh. A specific direction was given that in the event any malpractice was found in the distribution of any petroleum products, in such case action would be taken against the owner of the retail outlet. Based on the said direction of the State Government, an inspection was made by the Special Investigation Team at the retail outlet of the petitioner on 2.5.2017. The petitioner contends that in the inspection report it was found that there was shortfall of 30 ml of petrol while dispensing 05 litres from the dispensing unit, even though the seal was found intact. The petitioner further contends that there was no shortfall in the dispensation of the diesel from the dispensing unit. The Special Investigation Team on account of the shortfall of 30 ml while dispensing 05 litres from the dispensing unit sealed the dispensing unit from which the alleged petrol was dispensed. The petitioner pursuant to the sealing of its dispensing unit made a representation on 6.6.2017 for recalibration. The petitioner thereafter made a representation to the District Magistrate on 30.6.2017 for de-sealing of the dispensing unit. No action was taken by the authorities and on the other hand, a First Information Report was lodged against the petitioner on 3.7.2017 for the alleged malpractice pursuant to the inspection report. 4. The petitioner thereafter made a representation to the District Magistrate on 30.6.2017 for de-sealing of the dispensing unit. No action was taken by the authorities and on the other hand, a First Information Report was lodged against the petitioner on 3.7.2017 for the alleged malpractice pursuant to the inspection report. 4. Apart from the aforesaid, the District Supply Officer issued a suspension order dated 7.7.2017 on account of violation of Section 2(f) (viii) & (x) of the Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) Order, 2005 (hereinafter referred to as the Order of 2005) read with Section 3/7 of the Essential Commodities Act. The petitioner, being aggrieved by the suspension order, has filed the present writ petition. 5. Against the sealing order dated 27.5.2017, the petitioner had also filed Writ Petition No. 32613 of 2017, which was disposed of by the Court by an order dated 19.8.2017 directing the competent authority to consider and decide the application for compounding of the offence. 6. In the present writ petition, it was urged that there is no provision for suspension of the licence under the Order of 2005 and, therefore, the impugned order was manifestly erroneous. It was also contended that there was no shortfall of the petroleum product, inasmuch as, the shortfall was within the permissible limits as prescribed under the Legal Metrology Act, 2009. It was contended that assuming without admitting there was a shortfall, if any, in the petroleum product, the shortfall was compoundable under the provisions of the Legal Metrology Act, 2009. 7. On the basis of the above submission, we had directed the learned Standing Counsel to file a counter-affidavit indicating as to under what provision the suspension order was passed. A counter-affidavit has been filed indicating that the suspension order has been passed under Clause 8 of the U.P.High Speed Diesel Oil and Light Diesel Oil (Maintenance of Supplies and Distribution) Order, 1981. A counter-affidavit has been filed indicating that the suspension order has been passed under Clause 8 of the U.P.High Speed Diesel Oil and Light Diesel Oil (Maintenance of Supplies and Distribution) Order, 1981. For facility, clause 8 is extracted hereunder: “Suspension or cancellation and refusal to renew licence.— The licensing Authority may, for reasons to be recorded in writing suspend or cancel any licence if it is satisfied that the licensee has contravened any provisions of this order or the conditions of the licence or any direction issued thereunder: Provided that the licensee shall be given reasonable opportunity of submitting his explanation before his licence is cancelled or its renewal refused or suspended otherwise that by way of suspension pending inquiry: Provided further that no order of suspension pending inquiry shall extend beyond a period of three weeks.” 8. A perusal of the aforesaid provision indicates that a suspension order can be passed if there is a contravention of the provision of Order of 1981 or violation of the terms and conditions of the licence. The proviso further provides that before suspension order is passed, an opportunity of hearing is to be given to a licensee except in a case where an order of suspension is passed pending enquiry in which case the suspension order cannot extend beyond a period of three weeks. 9. In the light of the aforesaid provision, we find that in the instant case the suspension order does not talk about any violation of any provision of the Order of 1981 or violation of any term and condition of the licence. The suspension order talks about violation of the Order of 2005 and a First Information Report lodged under Section 3/7 of the Essential Commodities Act. 10. From a perusal of the counter-affidavit and of the impugned suspension order, it is apparently clear that no enquiry is pending. Consequently, in our opinion, the suspension order can only be passed after giving an opportunity of hearing, which upon a bare reading of the suspension order is clear that no opportunity was granted to the petitioner before passing the suspension order. In our opinion, the impugned order suspending the licence of the petitioner without affording any opportunity of hearing, is violative of principles of natural justice and cannot be sustained. 11. In our opinion, the impugned order suspending the licence of the petitioner without affording any opportunity of hearing, is violative of principles of natural justice and cannot be sustained. 11. In M/s Gagal Heri Service Station, Gagal Heri, Dehradun v. State of U.P. and others, 1991(2) EFR 377, a Division Bench of this Court after considering the provision of Clause 8 of the Order of 1981 held that opportunity of hearing was an essential requirement before suspending the licence under the Order of 1981. Similarly, another Division Bench of this Court in Prakash Chandra Pandey v. The District Magistrate and others, 1990 (88) ALJ 86, held that a suspension order under the Order of 1981 without giving an opportunity of hearing was wholly illegal and unwarranted. The Division Bench further held that there was no such rule in the Control Order, which empowered the authority to suspend the licence on account of a criminal case being pending in a Court of law. 12. Consequently, the suspension order in the instant case on the ground that a First Information Report is lodged against the petitioner cannot be sustained. Thus, on this short point, the impugned order of suspension cannot be sustained. It is not necessary for this Court to answer other issues raised by the petitioner. The impugned order is quashed. The writ petition is allowed. 13. In the event the respondents want to proceed against any violation of the Order of 1981 or Order of 2005, appropriate notice and opportunity of hearing should be given. It is made clear that if such proceedings are initiated it would be open to the petitioner to take such ground, if so advised, before the authorities.