Madras High Court
T. Subramania Chettiar And Others vs The District Supply Officer And Others on 21 July, 1994
Equivalent citations: AIR1995MAD54, AIR 1995 MADRAS 54
ORDER
1. This writ petition by 16 kerosene retail vendors seeks a mandamus to direct the first respondent District Supply Officer, to renew their licences in accordance with law and supply kerosene to them. The above said "licence" is actually called Registration Certificate under the relevant provisions of law, namely Tamil Nadu Kerosene (Regulation of Trade) Order, 1973.
2. In this writ petition notice of motion was ordered on 17-5-1994. Then on 1-7-94 when the writ petition came up before me, 1 passed the following order :--
"Learned Government Advocate to file counter on behalf of respondent and also to produce relevant records. Ten days time is given finally. Post for disposal two weeks hence".
(sic) posted again, no doubt, the learned Government Advocate wanted some further time for filing counter-affidavit and for producing relevant records. But, after going through the affidavit in support of the writ petition and after going through the one document produced before me (at 31-5-94) by the learned counsel for the petitioner (to which reference is made below), I do not think there is merit in the writ petition and accordingly I propose to dispose of the main writ petition after hearing the arguments.
3. According to the supporting affidavit the petitioner have paid renewal licence fees in March, 1994, but renewal has not been effected and supply also has been stopped from April, 1994. Their contention is that as per G.O.Ms.No. 380 (Co-operation, Food and Consumer Protection Department) dated 22-12-1988 the retail dealers licence should be given as per Tamil Nadu Kerosene (Regulation of Trade) Order, 1973 for three years and while it has been so given in other districts, which is not given in the district to which the petitioners belong. The learned counsel for the petitioner also reiterated what is contained in the supporting affidavit. But. I find that even though the petition seeks a mandamus for renewal of the above said licence, the affidavit does not at all speak of any applica-tion made to the respondents requesting them to grant the said licences. All that is stated in para 4 of the supporting affidavit is in March, 1994 the second and the third respondent directed the petitioners to pay those renewal fees and accordingly payments had been made by the the petitioners and they request-ed the first respondent to renew their licences But no where it is stated that an application was made for the grant of the said licence.,-R. 5(6) of the Tamil Nadu Kerosene (Regulation of Trade) Order, 1973 specifically provides thus:--
"Rule 5(6):-- The application for renewal of Retail Registration Certificate shall be made after payment of fees prescribed in sub-clause (5) not less than two months before the date of the expiry of the Retail Registration Certificate."
While so, unless there is an averment in the supporting affidavit stating that such an application referred to in R. 5(6) has been made to the relevant authority, there is no scope at all for considering whether mandamus, as prayed for is to be issued.
4. Further in connection with the averments in the writ petition, the learned counsel for the petitioners produced before me a copy of the order of the first respondent dated 31-5-94, that is after the present writ petition was filed (it was filed on 9-5-94). No doubt that order says that the 1st petitioner herein preferred an application for licence for three years from 31-12-1993. The said order further states that as per the above referred to R. 5(6) and also Cl. (7) thereof, two months prior to the above referred to licence expiry date of 31-12-1993 i.e., in October, 1993 renewal fee should have been paid and if not so paid, it must be paid together with penalty, before the end of November, 1993. It also further states that after such payment, the petitioner should have applied for the grant of licence, but that he did not do so. Therefore, the said order says that the registration certificate (that is the licence referred to by the petitioner) granted to the petitioner is set aside. The said order also provides that the applicant therein (the first petitioner herein) could if he so desires, prefer an appeal against the said order within 30 days.
5. Now the above referred to document produced by the learned counsel for the petitioners, though mentions that an application was filed by the first petitioner herein under the said Tamil Nadu Kerosene (Regulation of Trade) Order, 1973, for retail dealership in kerosene, it clearly says that the said application was out of time. It also mentions that even the renewal fee was paid out of time. That is why though it states that the registration certificate granted is set aside, what is meant is that it actually rejectes the application as it being out of time.
6. Any way, it is clear that the petitioners have suppressed in the supporting affidavit this particular fact, namely, that the payment of renewal fee and the application for registration certificate were out of time. In all fairness, the petitioners in their supporting affidavit should have mentioned about this material fact, but deliberately have suppressed the above said material fact. On this ground also, this writ petition is liable to be dismissed.
7. That apart, the above referred to order dated 31-5-94 in relation to the first petitioner states that an appeal lies against the said order to the District Revenue Officer within thirty days from the date of receipt of the said order. The petitioner could have also pursued the above said appellate remedy. On the other hand, the writ petition proceeds as if no such appeal remedy is available.
8. No doubt, the learned counsel for the petitioners brought to my notice the above referred to order dated 31-5-94 for another purpose namely to contend that even without giving any prior show cause notice, the licence already granted had been set aside by the above referred to order dated 31-5-94. But, as I have already indicated above the said order is actually an order rejecting the application for grant of "licence" as out of time. For such a rejection, no show cause notice is necessary at all.
9. No doubt the learned counsel for the petitioners also argued that even the original licence that was granted (which appears to have expired by 31-12-1993 itself at least in so far as is petitioner, as per the above referred to order dated 31-5-94) should have been for 3 years pursuant to the above said G.O. Ms.No. 380 (Co-operation, Food and Consumer Protection Department) dated 22-12-1988 and also as per R. 5 of the above said Order, 1973. But this objection, if sustainable, should have been taken by the petitioners at the time when original 'licence' was granted for a period less than 3 year on 31-12-93. Al! that now prayed for is only for renewal of the licence as per the above said Tamil Nadu Kerosene (Regulation of Trade) Order, 1973.
10. For all the above said reasons, the writ petition is dismissed. In view of the above referred to suppression of material fact, the petitioners are directed to pay cost to the respondents. Counsel fee Rs. 1,000/-.
11. Petition dismissed.