MITTHAN LAL GUPTA Vs. DISTRICT MAGISTRATE ETAH

JUDGEMENT

(1.) The petitioner is a petty diesel dealer and holds a licence under U. P. High Speed Diesel Oil and Light Diesel Oil (Maintenance of Supplies and Distribution) Order. 1981 (hereinafter referred to as 1981 Control Order) for retail sale of diesel. He is a "dealer" as defined in clause 2 (d) of the Control Order. A sample of diesel was taken from his business premises by an inspection team which consisted of a Sub-Divisional Magistrate, a Supply inspector and some other employees of the supply department on 22.12.1998. A notice dated 12.8.1999 was served upon him stating that the sample taken from his business premises on 12.8.1998 was analysed by Forensic Science Laboratory. Agra, which had submitted a report that the sample did not conform to the standards fixed by the indian Standards institution and was found to be adulterated with kerosene. He was required to show cause why his licence may not be cancelled on the aforesaid ground. The petitioner claims that he gave an application to the Collector. Etah, praying that third portion of the sample, which had been given to him in a sealed container, may be analysed as he doubted the correctness of the report of the Forensic Science Laboratory, Agra. The Collector, Etah, by his order dated 13.10.1999 cancelled the licence of the petitioner and forfeited the security amount in favour of the State. The present writ petition has been filed praying that a writ of mandamus be issued commanding the respondents to get the third portion of the sample which had been taken from his business premises on 22.12.1998 be re-analysed from the Forensic Science Laboratory. Agra. A further prayer has been made that the respondents be restrained from interfering with the petitioner's business till the report of analysis of the third portion is received from the laboratory.

(2.) Mrs. Poonam Srivastava, learned counsel for the petitioner has urged that though the sample was taken on 12.8.1998 but the report of the Forensic Science Laboratory, Agra, was sent by its Joint Director on 22.7.1999 which showed that the sample had been analysed after almost 7 months and during this period it may have undergone a change. She has further urged that it is likely that sample sent for analysis may have got mixed up with other samples which resulted in a wrong report and, therefore, the prayer made by the petitioner for a fresh analysis of the third portion of the sample, being retained by him, ought to have been granted by the authorities. Learned standing counsel has urged that the mere fact that the report of the analysis was received along with a covering letter of the Joint Director of the Laboratory dated 22.7.1999 did not itself mean that the analysis had been done after 7 months. He has also urged that diesel being a petroleum product cannot undergo a change merely by lapse of time and it could not show presence of kerosene even if the analysis is done after a long period. He has further contended that there is no provision for a fresh analysis of the third portion of the sample under the Control Order dealing with the subject and, therefore, the prayer made by the petitioner cannot be granted.

(3.) In order to appreciate the contentions raised. It is necessary to mention the reasons which impelled the State Government to introduce the system of appointment of "petty diesel dealers". The State Government issued an order laying down guidelines for appointment of petty diesel dealers for sale of high speed diesel in retail on 16.9.1987. The order recites that the retail outlets of Government oil companies for sale of diesel are normally situated in all the cities, but there are no retail outlets in rural areas due to which the consumers, specially the farmers, face considerable hardship in carrying diesel from the cities to their homes or fields and this was having an adverse impact on agricultural operations. The State Government had accordingly taken a decision that the requirement of diesel of the farmers, who are residing at some distance from the cities and regular retail outlets, should be met by making an appropriate arrangement and in this connection petty diesel dealers be appointed under the provisions of the 1981 Control Order. The order further recites that as diesel was an inflammable petroleum product, whose storage was governed by the provisions of the Petroleum Rules. 1976, and further in order to eliminate the chance of adulteration and blackmarketing in the commodity. It was necessary to impose some regulatory measures regarding appointment of petty diesel dealers. Thereafter the Government Order gives in detail the conditions which had to be observed in the matter of appointment and also in carrying on business of petty diesel dealers. Condition No. 1 mentions that no petty diesel dealer will be appointed within a radius of five kilometres of a regular diesel establishment by an oil company on any national or State highway. Condition No. 2 provides that petty diesel dealers will not be allowed to store more than 4 kilolitres (4000 litres) of diesel at any point of time. Condition No. 6 provides that renewal of licence of petty diesel dealers shall be done only for a period of one year and if in future the retail outlet of an oil company is established within 5 kilometres of his place of business. his licence shall not be renewed any further. Condition No. 8 provides that appointing authority of a petty diesel dealer will be Collector who is the licensing authority under the 1981 Control Order. Condition No. 9 provides that a petty diesel dealer shall be attached to a retail outlet of an oil company and it will be incumbent on him to take supply of diesel from the said retail outlet in barrels and drums. It further provides that regular checking may be done to ensure that he is getting supply from the same authorised diesel retail outlet and sample of diesel being sold by him may be occasionally taken for testing of its quality. Condition No. 11 provides that in order to avoid chances of adulteration, a petty diesel dealer will not be allowed to sell kerosene and diesel simultaneously from the same place. Another Government Order laying down the guidelines for appointment of the petty diesel dealer was issued by the State Government on 25.4.1997 which contains almost the same conditions as in the order issued on 16.9.1987.