N.K. Sinha, J.
1. The petitioner is one of the partners of the firm namely M/s. Bharat Automobiles. The firm is a dealer under the Bihar Motor Spirit and High Speed Diesel Oil Dealer's Licensing Order, 1966 (hereinafter) the Licensing Order' as vide licence No. 17 of 1971. A show cause was served on the partners of the firm vide memo No. 192 dated 4.3.92 under the signature of respondent No. 2 to show cause why the licence of the firm should not be suspended for contravention of certain terms and conditions of the licence. The licence was suspended under Clause 8 of the Licensing Order. An appeal under Clause 9 of the Licensing Order preferred by the firm before the State Transport Commissioner was also dismissed vide order dated 22.5.92 (Annexure-4). However, the order of suspension of licence did not become operative in view of the stay order granted by this Court on 17.6.92. The petitioner has invoked the writ jurisdiction of this Court for quashing the aforesaid orders.
2. Sri N.K. Agrawal learned Counsel appearing for the petitioner contended that the respondents had no authority under the law to suspend the licence and the impugned order of suspension as also the appellate order are not in accordance with the provisions of law and deserve to be set aside on that ground. Annexure-3 mentions certain allegations namely short supply of diesel, excess stock of spirit and absence of any verification in the stock register and sale register. Another ground for suspending the licence is said to be institution of the criminal case under Section 7 of the Essential Commodities Act. Counsel for the petitioner contended that mere pendency of the criminal case cannot be made a ground for suspension of licence. Allegation No. 1 considered by the appellate authority was in relation to short supply of diesel to the consumers. As per measurement taken against standard container by the Deputy Controller of weights and measures a short supply of 200 and 100 Mili Litres by the two delivery pumps on a quantity of 5 litres supplied was detected. It was contended on behalf of the appellant-petitioner that any short supply in the aforesaid circumstances did not make out violation of any of the terms and conditions of the licence or the provisions of the Licensing Order or any order made under Section 3 of the M.C. Act. The argument advanced before the appellate authority on behalf of the petitioner firm and reiterated before this Court is that the delivery pump machines are supplied by the company and verified by the weights and measurement department. The department after verification puts their case and supplies are made only thereafter. The licensee, it was claimed, could not be made responsible if something went wrong in the machine and as a result some short supply was detected. The appellate authority accepted the argument to some extent and was pleased to observe that though directly it may not be contravention of any of the provisions of the Licensing Order but the discrepancy in the stock register which is a necessary consequence of the short supply is a positive violation of condition No. 4 of the Licensing Order. It is difficult to appreciate the reasoning of the appellate authority or it the appellate authority was satisfied that the licensee was not responsible for short supply on account of some defect in the machines, it could not hold the licensee responsible for contravention of the provisions of the licence only because the quantity found was not in accordance with the entries in the register. Allegation No. 2 considered by the appellate authority was regarding excess stock to the tune of 545.92 litres. The admitted position is that the stock was measured by a deep rod method. The petitioner contended that the method adopted by the authorities for measuring the quantity of diesel inside the tank was a defective one. In other words the deep rod method used for the purpose was described as an unscientific one. Counsel for the petitioner relied on a judgment of this Court in Nathmai Kahra v. State of Bihar 1990 PLJR (1) 477, in support of the contention that the result yielded by the adoption of the deep rod method were not reliable. It was observed in course of the said judgment that the deep rod method to measure the stock of kerosene oil is not a proper method and it is even more unreliable where it has been done without taking into account the dimension of the tank. The detection of shortage/excess of stock by such method was thus not reliable and any prosecution for such shortage/excess is not valid. The Court was dealing with a case in respect of the Bihar Weights and Measures (Enforcement) Act 1960 but as contended on behalf of the petitioner the observation with regard to the method namely deep rod method are applicable to the facts of the present case also. Though the attention of the appellate authority was invited to the aforesaid decision of this Court but it appears that the appellate authority did not properly appreciate the observations made by this Court in course of its order. Otherwise also the shortage of diesel detected in course of the inspection was less than 550 litres and ordinarily the capacity of the diesel tank is 20-25 thousand litres. Thus the allegation with regard to detection of excess stock and 545.92 litres of diesel which was the subject-matter of allegation No. 2 before the appellate authority has no basis considering that such excess was detected by deep rod method which has been found to be unscientific in the above decision of this Court.
3. It was argued on behalf of the petitioner that there is no requirement under any of the provisions of the Licensing Order that the stock register and sale register maintained by dealers under the Licensing Order are required to be verified and signed by any public authority. It may be that as a measure of abundant precaution such registers are examined by the authorities and counter signed by them. However, in the absence of any legal obligation the failure of the licensee to get his stock register and sale register duly verified by the authorities cannot be held to be a violation of the terms of the licence. It may be mentioned that the appellate authority was very fair to hold that the said allegation namely allegation No. 2 had not been substantiated.
4. Thus for the foregoing reasons it appears that there was no material whatsoever on the record that the petitioner had contravened any of the clauses or conditions of licence as mentioned in the notice to show cause and hence the impugned order suspending the licence as also the appellate order dismissing appellant are not in accordance with law and are set aside.
5. In the result this writ application is allowed.