AI Structured Summary
Not yet generated for this judgment
Judgment
B.S. Patil
In this writ petition, petitioner is challenging the order dated 14.10.2011 passed by the Deputy Commissioner, Chikkaballapur, which is produced at Annexure-J, whereby in exercise of the powers conferred u/s 3 & 5(b) of Essential Commodities Act. 1955 and also under the provisions of Clause 7(1), 7(2) and 7(3) of the Petroleum Products (Maintenance of Production, Storage and Supply) Order, 1999, the entire ''unit run by the petitioner along with cylinders, vehicles, godown and the infrastructure in possession of the petitioner has been taken over to the Government and ordered to be handed over to another Gas Agency by name S.L.V. Gas Agency, Bagepaili, by way of temporary arrangement to enable distribution of petroleum gas to the consumers.
Petitioner entered into an agreement with the 3rd respondent M/s Hindustan Petroleum Corporation Limited for the purpose of supplying/distribution of petroleum gas for domestic and commercial consumption. According to the petitioner, for the last 26 years, it has been carrying on the business as a distributor without any allegation whatsoever. However, on 03.10.2011, the concerned Food Inspector conducted inspection, examined the stock register and ascertained the opening balance of filled up and empty domestic and commercial cylinder and seized 92 consumer pass books belonging to different customers. This was followed by communication dated 05.10.2011 addressed by the Tahsildar to the Executive Sales Officer of the 3rd respondent informing the seizure of the petitioner - agency.
According to the petitioner without examining the veracity of the allegations said to have been made against the petitioner and without providing any opportunity to the petitioner to have its say in the matter, based on the report of the Food Inspector and the Tahsildar as also the communication issued by the 3rd respondent, the Deputy Commissioner has passed the impugned order on 14.10.2011 whereby a direction has been issued to take over the establishment of the petitioner and hand over the same to another agency.
Learned counsel for the petitioner contends that the entire action culminating in the impugned order passed by the 1st respondent is totally illegal, arbitrary and therefore unsustainable. He draws the attention of the Court to the provisions contained under Clause 7 of the Petroleum Products (Maintenance of Production, Storage and Supply) Order, 1999, and submits that an opportunity of hearing ought to have been afforded to the dealer in case the Competent Authority were to come to the conclusion that taking over the unit was necessary in public interest. Referring to the proviso to Clause 7, learned counsel further submits that an exception is provided to dispense with notice and opportunity of being heard in cases of urgency where the circumstances do not permit serving of notice for want of sufficient time upon the dealer against whom the order is directed.
In the instant case, according to the learned counsel for the petitioner, a perusal of the materials on record, particularly the impugned order do not disclose that there was any such impediment for serving notice on the petitioner before resorting to such a drastic action by taking over the entire unit along with entire infrastructure of the petitioner thereby depriving them of the opportunity to continue their business which the petitioner has been pursuing for the last 26 years.
In the light of the nature of the impugned order passed and the nature of the grievance made regarding violation of the principles of natural justice, learned Government Pleader was directed to take notice and secure instructions in the matter.
On instructions, learned Government Pleader submits that keeping in mind the need for uninterrupted distribution of petroleum gas for the consumers and in view of the nature of the allegations made against the petitioner, the authority has found it just and appropriate to dispense with the opportunity of being heard which is normally provided in matters like this. He supports the action taken by the authority contending that the entrustment of the unit to another agency was done as per the recommendation made by the 3rd respondent.
Learned counsel for the 3rd respondent submits that they have made recommendation in view of the action initiated by the Deputy Commissioner and in order to ensure that supply of essential commodities like petroleum gas is not interrupted causing inconvenience to the consumers.
Upon hearing the learned counsel for the parties and on careful perusal of the materials on record, I find that the inspection of the petitioner''s unit is stated to have been conducted by the Tahsildar, Gowribidanur on 03.10.2011 at 4.00 p.m. The impugned order is passed on 14.10.2011. Between 03.10.2011 to 14.10.2011, the Deputy Commissioner -1st respondent herein had sufficient time to notify the petitioner and call upon it to have its say with regard to the allegations made against it and the action proposed to be taken, instead of forming unilateral opinion. The Deputy Commissioner seems to have addressed a letter on 07.10.2011 to respondent No.3 for making arrangement to entrust the distribution of petroleum gas in favour of another agency.
It is relevant to notice here that the petitioner has in fact made a representation to the Deputy Commissioner as per Annexure-F dated 07.10.2011 bringing to the notice of the Deputy Commissioner, that the Inspecting Officers had unilaterally decided that there was illegality in the distribution and that they had not even provided any opportunity to offer any explanation before taking such serious action. Petitioner has made a grievance before the Deputy Commissioner about not affording a fair chance to explain the facts and offer clarification regarding the irregularities attributed to it. Explanation is also offered in the said representation stating that when refills were sent to remote area, it was not possible to maintain strict Serial Order in view of the logistics and transportation costs involved and they group all the available bookings of that route to minimize the delivery costs. Even this representation is also not looked into by the Deputy Commissioner while passing the impugned order dated 14.10.2011.
As is clear from Clause 7 of the Petroleum Products (Maintenance of Production, Storage and Supply) Order, 1999, a duty is caste on the Competent Authority to provide an opportunity of being heard before resorting to taking over the unit of the petitioner. In view of the drastic nature of the action taken, adherence to the principles of natural justice is a rule. Though power is conferred on the authority to dispense with the requirement of adhering to the principles of natural justice, the same is circumscribed by the requirement that only in cases of urgency or in cases where the circumstances do not permit serving of notice for want of sufficient time upon the dealer against whom the order is directed, an opportunity of hearing may be dispensed with in public interest. As already adverted to above, petitioner has made a representation as back as on 07.10.2011 itself and before the impugned order could be passed on 14.10,2011 there was all the opportunity for the Deputy Commissioner to consider the said representation and also to hear the petitioner before taking the unilateral decision to direct taking over of the entire unit along with all the infrastructure. Merely because the 3rd respondent had suggested the name of another agency to whom the work of distribution could be temporarily entrusted, it cannot be said that the Deputy Commissioner was absolved of his duty to act in a fair and reasonable manner.
Learned counsel for the petitioner is right and justified in placing reliance on the judgment rendered by this Court in similar circumstances in W.P.No.5140/2008 disposed of on 12.12.2008, copy of which is enclosed to the writ petition.
In the light of the above, in my considered view, the appropriate order to be passed is to set aside the impugned order and direct the Deputy Commissioner to consider the matter afresh by providing an opportunity of being heard to the petitioner. Hence, the writ petition is allowed in part. The Deputy Commissioner is directed to reconsider the matter within 15 days from the date of receipt of a copy of this order It is made clear that till reconsideration is made, the temporary arrangement made in the matter shall continue