Khurshid Ahmad Wani vs Union Territory Of J&K & Ors
2021 Latest Caselaw 1042 j&K/2

                               HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                                               AT SRINAGAR


                                                                        Reserved on: 06.09.2021
                                                                      Pronounced on:13.09.2021

                                                    WP(C) No.1534/2021
                                                      CM No.5179/2021

                          KHURSHID AHMAD WANI                                   ...PETITIONER(S)

                                    Through: Mr. I. Sofi, Advocate.

                                                              Vs.

                          UNION TERRITORY OF J&K & ORS.                       ....RESPONDENT(S)

                                    Through: Mr. M. A. Chashoo, AAG.


                        CORAM:       HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE


                                                         JUDGMENT

1) Impugned in this petition is order bearing No.DCB/VC/2021/

PS/895-989 dated 6th July, 2021, passed by respondent No.3 and order

dated 30th July, 2021, passed in appeal by respondent No.2. The

impugned orders have been assailed, primarily, on the ground that the

same have been passed in sheer violation of principles of natural justice.

2) Before adverting to the grounds of challenge urged by the

petitioner, I deem it appropriate to give brief resume of the factual

antecedents leading to the filing of this petition.

3) Petitioner was granted license to import and store petroleum

Class "B" otherwise than in bulk in quantity not exceeding 25000 litres, MOHAMMAD ALTAF BHAT 2021.09.14 13:31 I attest to the accuracy and integrity of this document

CM No.5179/2021

being licence No.03 dated 17th April, 2018, issued by District

Magistrate, Bandipora. The initial license was for a period of one year

which was subsequently extended from time to time. The license was

last extended up to 17th April, 2022. During the currency of the license,

Additional District Magistrate, Bandipora, vide his notice

No.DCB/VC/2021/217-20 dated 30.04.2021, called upon the petitioner

to show cause as to why action as warranted under Petroleum Act,

1934, be not taken against him. In the show cause notice aforesaid, the

petitioner was intimated that the respondent No.2 has received

complaint that DC Point operators were violating the norms of licenses

by converting their licenses into self styled petrol pumps and that a

committee constituted by the respondent No.3 had, on verification,

found the aforesaid allegations substantiated. Similar show cause

notices were issued to other alleged violators of the licenses issued by

respondent No.3.

4) The petitioner responded to the aforesaid notice and claimed that

with a view to give an effective reply, he would require the copy of

enquiry report of the committee constituted by respondent No.3 which

had allegedly conducted the inspection.

5) The respondent No.3 without adverting to the request of the

petitioner straightway passed the impugned order dated 6 th of July,

2021, relying heavily on the report of the Committee constituted by

him. Acting in exercise of powers conferred upon him under Rule 152

MOHAMMAD ALTAF BHAT 2021.09.14 13:31 of Petroleum Rules, 2002, respondent No.3 suspended the license of the I attest to the accuracy and integrity of this document

CM No.5179/2021

petitioner. This was challenged by the petitioner by way of an appeal

under Rule 155 of the Petroleum Rules, 2002, before the respondent

No.2. The respondent No.2 concurred with the view of respondent No.3

and, accordingly, dismissed the appeal. This is how the petitioner is

before me in this petition.

6) Respondents have filed their objections and have submitted that

the impugned order was passed by the respondent No.3 after providing

an opportunity of being heard by way of a show cause notice to the

petitioner. The petitioner, however, submitted a vague reply and,

therefore, respondent No.3 was left with no option but to pass the

impugned order while relying upon report of the committee constituted

by him.

7) With regard to the allegation of the petitioner that the

respondents had adopted a pick and choose method and had not initiated

any action against similarly situated violators of the terms and

conditions of the licenses, this Court, vide order dated 23.08.2021,

directed the respondents to file an affidavit to explain as to how they

had dealt with similarly situated persons. An affidavit in this regard is

filed by the respondents explaining the manner in which the persons

allegedly similarly situated with the petitioner had been dealt by the

respondents.

8) Mr. Chashoo, AAG, has produced the record which contains

orders passed in case of some similarly situated persons and the NOCs

MOHAMMAD ALTAF BHAT 2021.09.14 13:31 obtained by the petitioner from different authorities/agencies. I could I attest to the accuracy and integrity of this document

CM No.5179/2021

not find any report of the Committee constituted by the Deputy

Commissioner which had conducted on spot verification of outlets of

five license holders.

9) Having heard learned counsel for the parties and perused record,

I am of the view that the impugned order passed by respondent No.3 is

in violation of principles of natural justice, in that, an adequate

opportunity of being heard was not given to the petitioner. It is true that

before passing the impugned order, petitioner had been put on show

cause notice to explain his position. As per the show cause notice dated

30th April, 2021, an action was initiated against the petitioner on two

counts; one that the respondent No.3 had received several complaints

making a general allegation that all the DC point operators were acting

in violation of the norms of their licenses and two that the committee

constituted by the respondent No.3 to verify the position on spot had

found that the DC Point holders had set up petrol pumps and were

carrying out the sale of petroleum products to consumers through self

mode outlets which was in violation of Petroleum Rules, 2002 and

Petroleum Act, 1934. While serving the show cause notice upon the

petitioner, neither copies of the complaints were served upon the

petitioner nor the report of the committee constituted by the respondent

No.3 vide his order dated 15th April, 2021, was given to the petitioner

despite the petitioner having made a specific request in this regard. The

respondent No.3, without providing the requisite material to the

petitioner to enable him to effectually reply the show cause notice, MOHAMMAD ALTAF BHAT 2021.09.14 13:31 I attest to the accuracy and integrity of this document

CM No.5179/2021

hurriedly proceeded to pass the impugned order. Same mistake was

committed by the Appellate Authority i.e., respondent No.2. Needless

to say, that compliance with the principles of natural justice,

particularly the principle of audi alteram partem, before passing an

adverse order effecting civil rights of a person is not an idle formality.

The notice of hearing must be such as would afford the noticee an

adequate opportunity to effectually submit his reply. All material which

is relied upon for proposed adverse action ought to be supplied to the

person concerned. Failure to do so would render the ultimate order

passed by the concerned authority illegal and vitiated in law. Legal

position is well settled (see Mohinder Singh Gill and anr. v. Chief

Election Commissioner & Ors.; (1978) 1 SCC 405, and S. L. Kapoor v.

Jagmohan & Ors: (1980) 4 SCC 379.

10) In view of the aforesaid, I find merit in this petition and,

accordingly, both the impugned orders are quashed. However, quashing

of the impugned orders shall not preclude the respondents from

proceeding against the petitioner de novo in accordance with law. In

case the respondent No.3, on the basis of the material available with

him, is of the view that the petitioner is violating or has violated the

terms and conditions of the license, he shall be free to put the petitioner

on show cause notice, provide him the relevant material and give him

an adequate opportunity to reply. The respondent No.3 could also hold

an enquiry into the matter, if required, and associate in such enquiry

MOHAMMAD ALTAF BHAT 2021.09.14 13:31 I attest to the accuracy and integrity of this document

CM No.5179/2021

petitioner as well and pass appropriate orders as may be warranted

under Petroleum Act, 1934 and Petroleum Rules, 2002.

11) Record be returned to learned counsel for the respondents.

(Sanjeev Kumar) Judge Srinagar, 13.09.2021 "Bhat Altaf, PS"

                                           Whether the order is speaking:        Yes/No
                                           Whether the order is reportable:      Yes/No




MOHAMMAD ALTAF BHAT
2021.09.14 13:31
I attest to the accuracy and
integrity of this document