Jammu & Kashmir High Court - Srinagar Bench
Mohammed Amin Dar vs State Of J&K And Ors on 16 October, 2011
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR OWP No. 1086 of 2009 CMP No. 2048 of 2009 OWP No. 19 of 2010 CMP No. 18 of 2010 OWP No. 544 of 2005 CMP No. 688 of 2006 OWP No. 884 of 2010 CMP No. 1462 of 2010 OWP No. 277 of 2009 CMP No. 502 of 2009 OWP No. 126 of 2010 CMP No. 200 of 2010 Mohammed Amin Dar Reyaz Ahmad Malik All Retail Kerosene Oil Dealers Asso Ali Mohammed Bhat Mushtaq Ahmad Sheikh Gh. Mohi-ud-Din Khan Petitioners State of J&K and Ors Respondents !Mr. M. M. Dar, Advocate Mr. M. Ayoub Bhat, Advocate Mr. I. A. Parray, Advocate ^Mr. H. I. Hussain, Advocate Mr. M.A. Wani, Advocate Mr. Shah Aamir, Advocate Ms. Arifa Jan, Advocate Mr. M. A. Beigh, Advocate Honble Mr.Justice Muzaffar Hussain Attar, Judge Date: 16/10/2011 :J U D G M E N T:
The issues involved in all these writ petitions are almost similar, so they are taken up together for consideration and are disposed of by this common judgment.
OWP.No. 544/2005, CMP.No. 688/2006 This petition is filed by Retail Kerosene Oil Dealers Association of District Anantnag, Budgam, Pulwama, Sopore and Baramulla, wherein they have called in question the Government Order dated 19th April, 2005 and Circular dated 4th October, 2005. It is averred in the writ petition and also argued by Mr. M. Ayoub Bhat, that the petitioners who were unemployed persons were issued licenses by the competent authority as Retail Dealers for supplying of Kerosene oil to the consumers in terms of Jammu and Kashmir Kerosene (License) order, 1974 (for short order of 1974) issued vide SRO -79 dated 25th February 1974. Learned counsel for the petitioners submitted that the supply of kerosene oil to the petitioners was regulated by the respondents by issuance of Government Order No. 49-FST of 1997 dated 11th March, 1997. Learned counsel also invited the attention of the Court to paragraph-4 of the said Government Order which is taken note of:-
The area of operation shall be specified in the license and no license may be issued unless the area of operation caters to at least 500 households in an urban area and 800 households in rural area. Learned Counsel submitted that petitioners are aggrieved of the Government Order No. 130-CA&PD of 2005 dated 19th April, 2005, in terms of which the aforementioned paragraph-4 of the order of 1997 was modified. The modiied paragraph-4 is taken note of:-
The area of operation shall be specified in the license and no license will be issued unless the area of operation caters to at least 250 house holds in a rural or urban area Learned counsel also submitted that the Circular issued by respondent no. 2 is also illegal and in this behalf invited the attention of the Court to last paragraph as also to Clause-viii of the said Circular which are taken note of :-
..Whereas, complaints are pouring in that large scale of K.oil is being misused and sold in black market and the general public is being fleeced for the produce;
VIII. K.oil permit shall be issued by the Deputy Director concerned upto five hundred (500) litres and such permit for larger quantity shall be issued by the Director-CA&PD Kashmir Learned counsel submitted that the petitioners area of operation has been restricted by issuance of Government Order dated 19th April, 2005 and restriction is placed on the rights of the petitioners to receive only 500 litres of the kerosene oil. Learned counsel submitted that the right to carry on business and trade is a guaranteed fundamental right of the petitioners and by issuance of the aforementioned Orders/Circulars, the said right has been infringed. Learned counsel submitted that the petitioners were not supplied kerosene oil for onward supply to their consumers in accordance with the terms and conditions of the licenses, thus, affecting their right to carry on business/trade. Learned counsel accordingly prayed for allowing the writ petition. Learned counsel at the request of the Court, produced Xerox copy of the license alongwith legible copy of license No. 64-12/SHch dated 31st January, 1991. The copies are taken on record.
OWP.No. 277/2009, CMP.No. 277/2009, OWP.No. 126/2010, CMP.No. 200/2010 OWP.No. 19/2010, CMP.No. 18/2010 In all these petitions, the petitioners have called in question, the license issued in favour of the private respondents.
In OWP.No. 277/2009, Mr. I. A. Parray, learned appearing counsel for the petitioner submitted that the license could not be issued in favour of the private respondent for the reason that at the time the license was issued, he was a student and license was already issued to one of his family members. Learned counsel submitted that the petitioner, in order to earn his livelihood opted for dealing with the business of kerosene oil and for this purpose, he approached the competent authority and license was issued in his favour. Learned counsel submitted that the petitioner was given to understand that the license would be issued in his favour only when he would indicate that he would not seek Government employment and conduct any business. In order to keep the record straight, it would be appropriate to clarify the position at this stage itself, inasmuch as, this is not the case set up by the petitioners in the writ petition. Learned counsel argued at length and submitted that the official respondents have no authority to deviate from the policy formulated by it in the year 1997 and that the order of 2005 which adversely affected the rights of the petitioner is illegal. It is borne out from the record that the order of 2005 has not been challenged in this writ petition.
Mr. H.I Hussain, learned senior appearing counsel for the private respondent, while referring to the documents annexed with the reply affidavit/objections filed by his client submitted that the private respondent does not live with his brother but is living with his father and is not member of the family of his brother who is holding license. Learned counsel also submitted that the license was issued in favour of private respondent in the year 2009, when the said respondent had completed his studies in the year 2008. Learned counsel also submitted that in public interest, the official respondents have issued licenses in favour of the private respondents and prayed for dismissal of the writ petition.
OWP.No. 126/2010, CMP.No. 200/2010 In this case, the license issued in favour of the private respondent no. 4 is called in question. The sheet anchor of the arguments of Mr. Parray, learned counsel for the petitioner is that the official respondents are bound by the Government Order of 1997, which provided that the Government would supply kerosene to the area of operation which caters to at least 500 households in an urban area and 800 households in rural area. Learned counsel submitted that the license having been issued in breach of the order of 1997 is rendered illegal. Learned counsel submitted that by issuance of license in favour of the private respondent, the source of petitioners livelihood would be affected. In order to keep the record straight it is clarified that order of 2005 has not been called in question in this petition as well. One of the plea of the petitioner is that interim order passed by the Court in OWP.No. 544/2005 has not been complied with.
Mr. Beigh, learned appearing counsel for the private respondent, submitted that in consonance with the policy of the Government and in consonance with the order of 1974, the license has been issued in favour of his client. Learned counsel also submitted that the Government Order of 2005 has not been called in question in this writ petition. No relief can be granted to the petitioner as the license has been issued in favour of the petitioner in pursuance of order of 1974 read with Government Order of 2005.
OWP.No. 19/2010, CMP.No. 18/2010 In this writ petition, it is prayed that the license issued in favour of the private respondent be quashed and other reliefs are also sought which are incidental to the main relief. Mr. Parray, reiterated the arguments which he advanced in respect of other two writ petitions and prayed for allowing the writ petition.
OWP.No. 1086/2009, CMP.No. 2048/2009 In this writ petition, the license issued in favour of the private respondent is called in question.
Mr. M.M.Dar, learned appearing counsel for the petitioner, submitted that by issuance of license in favour of the private respondent, the area of petitioner has been curtailed and the action of official respondents is illegal as before issuing so called curtailment order, no opportunity of hearing has been granted to the petitioner. Learned counsel submitted that the petitioner has been in the said business for more than two decades and by issuance of license in favour of the private respondent, the source of petitioners livelihood has been considerably affected. Learned counsel further submitted that the order of 2005 was stayed by the Court in OWP.No. 544/2005, thus, the official respondents could not proceed on the basis of said Government Order and issue license in favour of the private respondent.
Learned counsel also submitted that the official respondents could not change the policy of issuing of license in a particular area which has adversely affected the right to carry on trade and business of the petitioner.
Ms. Arifa Jan, learned appearing counsel for the private respondent, submitted that the order of 2005 has not been called in question in this writ petition. Learned counsel submitted that the license has been issued in favour of the private respondent in accordance with the order of 1974and Government Order of 2005 and same does not in any manner whatsoever violate any of the rights of the petitioner. Learned counsel also submitted that the order, which was challenged in OWP.NO. 544/2005 pertains to the case of the petitioners therein, thus, would not have any effect on the powers of the competent authority to issue license in favour of the private respondents. Learned counsel accordingly prayed for dismissal of the writ petition.
OWP.No 884/2010., CMP.No. 1462/2010 License of private respondent has been called in question in this writ petition. Mr. M.M.Dar, learned counsel for the petitioner reiterated the arguments which were submitted in respect of OWP.No. 19/2010. The Government Order of 2005 has not been called in question in this petition also.
Mr. M. A. Wani, learned appearing counsel for the private respondent submitted that the license has been issued in favour of the private respondent in terms Government Order 1974. The order of 2005 has not been called in question, so the writ petition is not maintainable. Learned counsel submitted that the license has been issued in favour private respondent in accordance with the order of 1974 and Government Orders occupying the field which have been issued from time to time. Learned counsel submitted that the interim direction issued on 27th October, 2005 was confined to that case and it was not the order passed in rem.
Mr. Shah Amir, learned appearing counsel for official respondents submitted that the source of power for issuance of license of kerosene oil is the order of 1974 and in order to provide better and proper service to the consumers and in public interest, the official respondents have been issuing executive instructions in the shape of Government Orders to regulate the supply of kerosene oil to the consumers from time to time. Learned counsel also submitted that the petitioners have no vested right to monopolize the trade. Learned counsel finally submitted that none of the legal or constitutional rights have been infringed and by issuance of the Government Order in 2010, these petitioners are rendered infructuous.
Right to practice any profession, or to carry on any occupation, trade or business is guaranteed fundamental right under Article 19 (g) of the Constitution of India. In terms of sub-clause (6) of the said Article, reasonable restrictions in the interests of general public can be placed on the exercise of right conferred by clause (g).
The kerosene is controlled commodity and its supplies have been regulated by issuance of order of 1974, which order has been issued in exercise of powers conferred by Section-3 of Essential Commodities Act of 1965. A kerosene license is to be issued in terms of and on entering satisfaction about the conditions contained in order of 1974. The petitioners are license holders, they have right to carry on the trade/business strictly on the terms and conditions of the order of 1974. The clause -16 of the order of 1974 provides that Licensing Authority may from time to time issue such instructions not inconsistence with the said order as may consider necessary for the purpose of implementing provisions of the said order. The competent authority in terms of the order of 1974, after entering into satisfaction that the provisions of order of 1974 have been complied with, can issue license to a person for supplying kerosene oil to the consumers. This right of supplying kerosene oil to the consumers is not an absolute right. It can be regulated by the competent authority in terms of clause 16 of the order of 1974. The competent authority can issue as many as licenses as it deems proper in public interest provided same are issued in accordance with the order of 1974 and other enabling Government Orders occupying the field.
Fundamental right of the petitioners to carry on trade is not violated by issuance of the licenses in the same area of operation in favour of any other person. A person is entitled to carry on business only when he is authorized to do so by issuance of license in his favour and cannot claim absolute right to carry on trade in the area to the exclusion of other persons. The claim of the petitioners that their business would be adversely affected can not become ground to deny licenses to other persons who in law would satisfy the requirements for issuance of the said license and to whom the licenses are issued by the competent authority. The arguments of learned counsel for the petitioner, if accepted, would in turn infringe the Constitutional right of another person to carry on trade or business. No writ can be issued, the consequences of which would be infringement of fundamental right of another person. Even in the license which was issued, it is not stated that further license in the said area will not be issued by the competent authority.
The Government/competent authority has to primarily look to the public interest, while awarding licenses in respect of controlled commodity. The official respondents have been issuing Government Orders from time to time to regulate distribution of kerosene oil to consumers and these orders have been issued in public interest. The order of 2005which has been called in question in OWP.No. 544/2005 does not in any manner whatsoever infringe any of the legal rights of the petitioners. The petitioners are not aggrieved of order of 1997, they can not be said to be aggrieved of order of 2005, inasmuch as, same has been issued in public interest. The petitioners right to carry on trade or business in Kerosene oil is not absolute. They can carry on trade in such commodity only when permitted by the competent authority. The licenses issued in favour of the petitioners in view of the sample copy produced, does not indicate the number of consumers, thus, by issuance of executive instructions to regulate the supply of Kerosene oil to consumers, it can not be said that any of the terms and conditions of license have been varied to the detriment of legal rights of the petitioners. The clause (iv) of the Circular is not attracted to the facts of this case, as no such allegation is leveled against the petitioners, neither any action has been initiated for cancellation of their licenses. The clause
(viii) of the Circular provides for issuance of Kerosene oil permit and the power to issue such permit upto 500 litres has been given to Dy. Director and for large quantities to Director. The number of consumers to whom petitioners have to supply Kerosene oil is regulated by Government Order issued from time to time. The clause (viii) of Circular in no manner whatsoever affects the rights of the petitioners, as issuance of permit for Kerosene oil, which may not be applicable to the petitioners, is not confined to only 500 litres. The challenge thrown to Government Order of 2005 and Circular thus fails.
In other writ petitions the challenge thrown to the licenses issued in favour of the private respondents is on the basis of Government Order of 1997, paragraph-4 of which stands modified in terms of order issued in the year 2005. The licenses have been issued strictly in conformity with the said policy decision of the Government and the said Government Order has not been challenged in these writ petitions. No fault can thus be found in issuance of licenses which have been issued in favour of the private respondents. The claim projected that before issuance of license in favour of the private respondents, the petitioners should have been put on notice and afforded opportunity of hearing, is not requirement of the statute. The Government Order of 1974 provides for grant of opportunity of hearing when action is proposed for cancellation of licenses. In all these cases, neither any action was proposed nor initiated for cancellation of the licenses of the petitioners.
The another submission made at the bar that petitioners were directed to obtain No Objection Certificate from the Employment Exchange and Financial Institutions, though not specifically set up in the writ petition, still can not become a ground in law for allowing the writ petitions, inasmuch as, a person who deals in kerosene oil, a controlled commodity in public interest could not be permitted to be a Government servant or to have obtained financial assistance for conducting any other business. The contention of learned counsel for the petitioner made at the bar that the private respondent in whose favour license has been issued was a student at that point of time and one of his family members has been already issued kerosene license is found on record to be incorrect in view of the objections filed by the said respondents.
It is not the case of the petitioners in any case that for malafide reasons or in breach of statute or statutory rules, the Government Order of 2005 has been issued.
For the above stated reasons these petitions being meritless are dismissed. Interim direction shall stand vacated.
(MuzaffarHussain Attar) Judge Srinagar 16.11. 2011