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M/S V.KUMAR versus COMM.

High Court of Judicature at Allahabad

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M/S V.Kumar v. Comm. - WRIT - C No. 15364 of 1986 [2007] RD-AH 2630 (19 February 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Judgment Reserved on 1.2.2007

Judgment Delivered on 19.2.2007

(Reserved)

Civil Misc. Writ Petition No. 15364 of 1986

M/s Vijendra Kumar Versus Commissioner, Meerut Division Meerut and others.

Hon'ble S.U.Khan J

Petitioner was licence holder to sell three commodities i.e. Kerosene Oil, High Speed Diesel Oil (HSDO) and Light Diesel Oil (LDO). Licence to sell Kerosene Oil was granted under U.P Kerosene Control Order 1962. Licence to sell HSDO and LDO were granted under U.P High Speed Diesel Oil and Light Diesel Oil (Maintenance of Supply and Distribution) Order 1981. On 13.11.1984 surprise inspection of petitioner's shop was made. At that time petitioner was not present at his premises however his brother was present. In the raid /inspection it was found that all the three commodities were either less or more than shown in the stock register. It was also found that Mobil Oil was also less than shown in the stock register. It was also found that stock and rate board was kept inside the shop and not placed in front thereof. The raiding party seized the aforesaid goods and gave them in the custody/ supurdagi of another person. Petitioner applied for fresh measurements. The application was initially rejected by District Magistrate Meerut. However, Special Judge Bulandshahr allowed the application and thereafter Inspector of Police measured the goods and submitted his report on 19.11.1984 according to which the quantities of diesel and the kerosene oil were in order and tallied with the entries of stock register. Thereafter under section 6 (1) of Essential Commodities Act, aforesaid goods were released in favour of the petitioner through order dated 11.1.1985. FIR was also lodged against the petitioner under section 3 and 7 of Essential Commodities Act, Petitioner's licences for all the three commodities were suspended and he was given show cause notice. On 1.2.1985 D.M. restored the licence to sell kerosene oil however security of Rs.100/- in respect thereof was forfeited. D.M on the same date i.e. 1.2.1985 cancelled the licences of the petitioner in respect of HSDO and LDO. District Supply Officer, Bulandshahr through his letters dated 2.2.1985 contained in annexure 7, 8 and 9 communicated the said orders of D.M. The orders of D.M have not been annexed either along with the writ petition or along with the counter affidavit. Against cancellation orders three appeals were filed being Appeal No. 30, 31 and 32 of 1985. Commissioner, Meerut Division Meerut dismissed all the three appeals through order dated 31.4.1986 hence this writ petition.

There was no allegation that due to variance in the stock register and actual quantity of the three commodities petitioner had either actually derived some illegal benefit or he could possibly derive any such illegal benefit.

In para 24 of the counter affidavit, it has been stated that kerosene oil licence of the petitioner was not cancelled and only his security money was forfeited as in the area petitioner was the only retail dealer of kerosene oil. It has further been stated that it was only in public interest that petitioner had been permitted to continue to deal in kerosene oil. The allegations in respect of all the three commodities were similar in nature i.e. either they were less or more than shown in the stock register. When the licence in respect of kerosene oil was not cancelled, there was no occasion to cancel the licence of HSDO and LDO. If the District Magistrate did not consider the irregularity to be serious enough to cancel the licence of kerosene then same irregularity in respect of diesel could not be considered to be serious enough to warrant cancellation of licence.

As annexure 16 to the writ petition, a Government Order dated 12.10.1983 communicated by Joint Secretary has been annexed which has been addressed to all the District Magistrates of U.P. In the said order, it is mentioned that clauses 10, 11, 13, 16(3), 16(5), 17 (1) to 17(4) of U.P.HSDO and LDO Control Order 1981 and condition No. 2 of the licence were suspended. In the said government order, it is also mentioned that through earlier order dated 4.11.1982, it had been directed that in respect of diesel dealers power to search and seizure was suspended except in those matters where the allegation was that kerosene oil was being mixed in the diesel. In view of the said government order neither the raid nor the cancellation of licence in respect of diesel was warranted as there was no allegation that petitioner mixed kerosene oil in the diesel. Even during raid / inspection it was not found that kerosene oil had been mixed along with diesel.

The commissioner during pendency of appeal had refused to grant stay order. Against the said order petitioner filed writ petition (W.P No. 7987 of 1985) in which stay order was granted. This writ petition is directed against cancellation order as confirmed by the appellate court. In this writ petition also stay order was granted on 9.9.1986.

Accordingly writ petition is allowed. Impugned. cancellation orders passed by D.M dated 1.2.1985 communicated by SDO through orders dated 2.2.1985 and the orders passed by the commissioner dated 31.7.1986 dismissing the appeals of the petitioners are set-aside.

Waqar

19 .2.2007


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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