IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 18TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE S. G. PANDIT WRIT APPEAL NO.2454 OF 2015 (GM-RES) BETWEEN:
M/S. INDIAN OIL CORP. LTD., MANGALORE TERMINAL PANNAMBUR MANGALURU - 575 010 REPRESENTED BY ITS CHIEF TERMINAL MANAGER REPRESENTED BY DEPUTY GENERAL MANAGER (OPERATIONS).
... APPELLANT (BY SRI SRIDHAR B K, ADVOCATE) AND:
1. THE DEPUTY COMMISSIONER DAKSHINA KANNADA DISTRICT DAKSHINA KANNADA MANGALURU-575 010.
2. SRI PRASAD JEETHAN D' SOUZA SON OF PAUL D'SOUZA AGED ABOUT 50 YEARS RESIDING OF OPP. BYRADI TANK PADEEL, MANGALURU-575 010 (DAKSHINA KANNADA).
... RESPONDENTS (BY SMT. R ANITHA, HCGP FOR RESPONDENT No.1 SRI. K CHANDRANATH ARIGA, ADVOCATE FOR RESPONDENT No.2) THIS APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION NO.42833/2012 DATED 29/06/2015.
THIS APPEAL COMING ON FOR PRELIMINARY HEARING THIS DAY, S.G.PANDIT J., DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the order dated 29.06.2015 passed by the learned Single Judge in W.P.No.42833 of 2012 by which the writ petition was disposed off, the writ petitioner has preferred this appeal.
2. The petitioner – M/s. Indian Oil Corporation Limited filed writ petition challenging the order dated 03.07.2012 -Annexure-C passed by the 1st respondent – Deputy Commissioner, by which it was ordered to forfeit a sum of Rs.1,73,595/- in a proceedings initiated under the provisions of the Essential Commodities Act, 1955, (for short ‘the Act’) against the 2nd respondent, and for a direction to the 1st respondent to release forfeited amount of Rs.1,73,595/-. The petitioner had engaged the services of the 2nd respondent under a contract to transport petroleum products. When the 2nd respondent was transporting the petroleum product of the petitioner, the officers of the Food and Civil Supplies Department have found certain pilferage committed by the 2nd respondent. In the process the entire petroleum product was seized. On an earlier occasion, the 2nd respondent had approached this Court in W.P.No.19694 of 2009, challenging the order dated 30.03.2009 passed by the 1st respondent directing deposit of value of seized petroleum product i.e., 20,000 liters of diesel from the vehicle of the 2nd respondent. This Court by order dated 09.06.2010 directed the appellant-
2nd respondent therein to deposit the value as ascertained by the 1st respondent and on such deposit to invest the same in fixed deposit initially for a period of one year with any Nationalized Bank. Aggrieved by the said order the appellant herein had filed W.A.No.2843 of 2010. By order dated 15.03.2011 this Court dismissed the writ appeal confirming the order of the learned Single Judge observing that the interest of the appellant is sufficiently safeguarded by the learned Single Judge by directing investment in fixed deposit and also permitting the appellant herein to participate in the confiscation proceedings.
3. Subsequently under Annexure-C the proceedings initiated by the 1st respondent – Deputy Commissioner culminated in passing final order forfeiting the Bank Guarantee for a sum of Rs.3,50,000/- furnished by the 2nd respondent, owner of the lorry and also forfeiting 25% of the amount deposited by the petitioner – appellant herein towards the seized value of petroleum product. Aggrieved by the said order, the petitioner filed writ petition seeking refund of the forfeited amount of Rs.1,73,595/- contending that the action initiated was against 2nd respondent for pilferage committed by him and the seized diesel was released as it belonged to the petitioner – appellant herein. It is further contended that for the offence committed by the 2nd respondent, the petitioner could not be made to suffer, that too, when the offence is proved against the 2nd respondent. The learned Single Judge by his reasoned order reserving liberty to the petitioner to avail the remedy to recover the amount from the 2nd respondent and keeping open all the contentions disposed off the writ petition.
4. Heard the learned counsel for the appellant and learned counsels for the respondents. Perused the appeal papers.
5. The appellant engaged the services of 2nd respondent under a contract to transport the petroleum products to its various outlets. It is not in dispute that the 2nd respondent committed pilferage while transporting the petroleum product of the appellant from its Mangalore terminal at Pannambur. Having initiated proceedings under the Act the Deputy Commissioner had directed the 2nd respondent to deposit the entire value of the petroleum product i.e., diesel, for its release. Against that order the 2nd respondent had approached this Court in W.P.No.19694 of 2009 and in the said writ petition this Court had directed the appellant herein to deposit the value as ascertained by the 1st respondent in respect of the petroleum product and directed the authorities to invest the same in fixed deposit. The petitioner aggrieved by the said order had filed Writ Appeal No.2843 of 2010 and the appeal came to be dismissed vide order dated 15.03.2011, confirming the order of the learned Single Judge. The order of this Court directing the petitioner to deposit the value of the petroleum product has become final. No doubt the violation of certain provisions and pilferage is against 2nd respondent. The offence against the 2nd respondent is proved and the 1st respondent – Deputy Commissioner by order dated 03.07.2012 has ordered to forfeit the amount of Rs.3,50,000/- Bank Guarantee given towards release of the tanker involved in the offence. When the offence is proved against the 2nd respondent, the 1st respondent – Deputy Commissioner ordered to forfeit 25% of the petroleum product seized from the tanker of the 2nd respondent. The amount deposited by the petitioner was available and out of the available amount, ordered to forfeit 25% of the amount. Further the Deputy Commissioner ordered to refund the balance amount. The petitioner and 2nd respondent are bound by the contract entered into between them. Under the contract if the petitioner suffers any loss on account of proved illegal action / activities of the 2nd respondent, it is always open to the petitioner to recover the amount of loss suffered by it. Moreover, the 1st respondent in its final order has observed that petitioner – Corporation was also responsible to certain extent as it has failed to verify whether cover and nozzle of the Tanker is properly closed. It is further observed that it is the responsibility of the petitioner Corporation to check properly while filling the petroleum product and to send the tanker out of its yard with proper check of cover and nozzle. Hence, the learned Single Judge rightly reserving liberty to the petitioner to recover the amount from the 2nd respondent has disposed off the writ petition.
6. We find no good ground to interfere with the impugned order dated 29.06.2015 passed by the learned Single Judge in writ petition No.42833 of 2012. For the reasons stated above the writ appeal is dismissed.
Sd/- Sd/-
JUDGE JUDGE NG* CT:bms