wp5911.11 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 5911 OF 2011 M/s Jatashankar Petroleum A Registered Proprietary Firm Murum Road, Tq. Omerga Dist. Osmanabad Through its Proprietor Balaji s/o Digambar Shinde aged 42 years, occ. business r/o Chincholi Rebe, Tq. Lohara Dist. Osmanabad .. PETITIONER VERSUS 1. The State of Maharashtra Through its Principal Secretary Food, Civil Supplies and Consumer Protection Department Mantralaya, Mumbai 32. 2. The Hon’ble Minister for Food, Civil Supplies and Consumer Protection Department, Mantralaya, Mumbai 32. 3. The District Magistrate / Collector Osmanabad, Dist. Osmanabad. 4. The Additional Collector, Osmanabad, Dist. Osmanabad. 5. Indian Oil Corporation Ltd Pune Division Office, 855/1, Bhandarkar Institute Road, Pune, Through its Chief Manager (RS) .. RESPONDENTS wp5911.11 2 Mr. R.N. Dhorde, advocate h/f Mr. V.R. Dhorde, advocate for the petitioner. Mr. S.D. Kaldate, AGP for respondent nos. 1 to 4. Mr. A.P. Bhandari, advocate for respondent no. 5. ===== CORAM : A.V. POTDAR DATE : 14 th DECEMBER, 2011 ORAL JUDGMENT : 1. This writ petition is moved by the petitioner questioning correctness of the order passed by respondent No. 3 i.e. District Magistrate / Collector, Osmanabad dated 21-5-2011 so also order passed by respondent No. 3 dated 13-7-2011 thereby confirming order dated 10-8-2010 passed by respondent No. 4 and notice dated 28-7-2011 issued by respondent No. 5. 2. Rule. Rule made returnable forthwith. Heard finally by consent of the parties. 3. Such of the facts which are necessary for just decision of this petition can be summarised as under : . Appellant herein entered into an agreement dated 13-3-1995 with respondent No. 5 Indian Oil Corporation Ltd. to start a retail outlet for supply wp5911.11 3 of petroleum products at Murum, Tq. Omerga, Dist. Osmanabad. Accordingly, requisite permission and licence were granted by the competent authority. It appears that in the year 1995, ‘no objection’ certificate as required under Rules 164 of the Petroleum Rules, 2002 was issued. The retail outlet granted in favour of the petitioner was working smoothly till 12-6-2010. . In the night between 12-6-2010 to 13-6-2010, on receipt of certain information, police attached to Murum police station alongwith Tahsildar visited the petrol pump / retail outlet run by the petitioner. At that time, one tanker was noticed in the area of retail outlet run by the petitioner. Three samples of the liquid substance from the diesel tank so also three samples of the liquid substance from the tanker standing in the are of retail outlet were collected. All the samples collected were sent to Regional Forensic Science Laboratory, Aurnagabad for test. On 22-7-2010 report of those samples was received reporting therein that the samples collected from diesel tank were found to be adulterated. It appears that before the action of confiscation was to be taken, the District Collector / Magistrate, Osmanabad issued show cause notice dated 15-7-2010 to which detailed reply was given by the petitioner herein. Vide letter dated 5-8-2010, the Additional District Collector, Osmanabad directed the District Co-ordination Officer, Indian Oil wp5911.11 4 Corporation Ltd. to collect sample of diesel from diesel tank situate at the site of the retail outlet run by the petitioner. Accordingly, on 9-8-2010 he visited the site alongwith Taluka Executive Magistrate, panch witnesses and police attached to Murum police station. In presence of the Executive Magistrate, panch witnesses and petitioner, three samples were collected. Out of the three samples, one sample was handed over to the petitioner as reserve sample and remaining two samples were collected by representative of respondent No. 5 – Hemant Kenikar who is Deputy Manager of respondent no. 5. After putting seal on the samples collected, those were sent to the Forensic Laboratory for test. Report of the test dated 10-8-2010 was received and communicated to the Additional District Collector, Osmanabad. Those reports are tagged at Exh. G collectively. It further appears that action about sale of seized property took place but before that notice dated 10-8-2010 was issued to he petitioner in the form of show cause notice which was replied by the petitioner vide his reply dated 23-3-2011. In this reply petitioner has mentioned that the report of test conducted by the officer of respondent no. 5 was communicated to him wherein it is reported that no adulteration was noticed in the diesel storage and the diesel tank and that action for cancellation of no objection certificate for storage of petrol items at the retail outlet run by the petitioner wp5911.11 5 be cancelled. Thereafter on 25-5-2011 the District Collector passed order of cancellation of ‘no objection certificate’ issued in favour of the petitioner. It further appears that the order of confiscation passed by the District Collector, Osmanabad dated 10-08-3020 was challenged in revision before the Honourable Minister for Food, Civil Supplies and Consumer Protection Department, State of Maharashtra who was pleased to turn down the revision on the basis of the raid conducted on the retail outlet of the petitioner in the night between 12-6-2011 and 13-6-2011 and an offence came to be registered in Murum police station and accordingly prosecution was lodged against the petitioner for offence under Essential Commodities Act. In the meantime, communication was issued by the General Manager of respondent No. 5 about further course of action to be taken against cancellation of licence by the District Collector, Osmanabad. All these orders are impugned in this petition. 4. On service, respondent No. 5 appeared in this petition and filed affidavit in reply. Respondent No. 5 raised an objection that the alternate remedy is available under Rule 154(2) of the Petroleum Rules to the petitioner but without availing that remedy, the petitioner has approached this court. However, respondent Nos. 1 to 4 have supported the actions impugned at wp5911.11 6 the hands of competent authority. 5. During the course of submissions across the bar, it is brought to the notice of this Court that order impugned does not disclose that before the order of confiscation was passed, directions were given by the Additional Collector, Osmanabad to the District Co-ordination Officer of respondent No. 5 to collect samples of the diesel stored in the diesel tank at the site of the retail outlet of the petitioner. Accordingly, those samples were collected after following due process of law and were sent for test to the Forensic Laboratory run by respondent No. 5 and the report of such samples indicates that there was no adulteration. In view of this, two aspects are required to be considered that during the action in the night between 12-6-2011 and 13-6-2011, diesel tank was sealed. it is also a matter of record that those seals were opened on 9-8-2010. Perusal of the requisite memorandum clearly shows that at the time of opening of those seals, they were found in damage condition. On the contrary, memorandum shows that the seals which were opened on 9-8-2010 were found intact as they were sealed in the night in between 12-6-2011 and 13-6-2011. If the seals are found intact there was no chance of tampering of seals to change the substance in the diesel tank. If it is so and the results of the tests conducted by the Forensic wp5911.11 7 Laboratory is / are contrary, in the circumstances, the effect of this contrary report is required to be considered by the competent authority before passing any order. The order impugned show that there is no reference of the test report submitted by the laboratory of respondent no. 5. If it is so, then apparently, the orders impugned are passed without application of mind and without following due procedure of law. It is settled position that in the writ petition the record placed before the court need not be verified as appellate authority but it is to be tested as to whether due process was followed or not. Thus, it is a matter of record that the orders impugned were passed without application of mind and without following due procedure of law. In view of this, the orders impugned are required to be quashed and set aside. Accordingly, the orders impugned are quashed and set aside. The matter is remitted back to respondent No. 3 – District Magistrate / Collector, Osmanabad to reconsider the same afresh and dispose it of in accordance with law within a period of three months from the date of receipt of writ of this Court. In the meantime, execution and implementation of the orders impugned are kept in abeyance. Rule made absolute accordingly. ( A.V. POTDAR ) JUDGE dyb