Gujarat High Court
Gayatri vs State on 24 June, 2011
Author: S.J.Mukhopadhaya
Bench: S.J. Mukhopadhaya
Gujarat High Court Case Information System
Print
SCA/10274/2010 22/ 22 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 10274 of 2010
With
SPECIAL CIVIL APPLICATION No. 8830 of 2010
With
LETTERS
PATENT APPEAL No. 3064 of 2010
In
SPECIAL CIVIL APPLICATION No. 10274 of 2010
With
LETTERS
PATENT APPEAL No. 3059 of 2010
In
SPECIAL CIVIL APPLICATION No. 8830 of 2010
With
CIVIL
APPLICATION No. 16680 of 2010
In
LETTERS PATENT APPEAL No. 3059 of 2010
With
CIVIL
APPLICATION No. 16800 of 2010
In
LETTERS PATENT APPEAL No. 3064 of 2010
For
Approval and Signature:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
=================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=================================================
GAYATRI
TRADERS & 22 - Petitioner(s)
Versus
STATE
OF GUJARAT, THROUGH SECRETARY / DEPUTY SECRETARY / & 2 -
Respondent(s)
=================================================
Appearance
:
MR
HEMANG R RAWAL & MR NAVIN PAHWA for Petitioner/appellants : 1 -
23.
MRS MANISHA LAVKUMAR SHAH AGP for Respondent(s) :
1,
=================================================
CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
Date
: 24/06/2011
CAV
JUDGMENT
(Per : HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA) In all these cases as a common question is involved, they were heard together and disposed of by this common judgment.
2. The writ petitions have been preferred by the petitioners - kerosene oil dealers against Circular dated 4th June 2010 circulated vide communication dated 8th June 2010 issued by the 1st respondent - State of Gujarat. The aforesaid order dated 4th June 2010 was issued by the State in exercise of powers conferred under sub-clause (1) of Clause 24 of the Gujarat Essential Articles (Licensing, Control and Stock Declaration) Order, 1981 (hereinafter referred to as `the Control Order') directing the kerosene oil dealers of the Oil Companies to deliver kerosene oil only on the date and the route pre fixed by Dy. F.C./D.S.O. to the fair price shop owners, kerosene retailers and hawkers at their respective shops and locations. In the writ petition, the petitioners prayed for interim relief. Initially while Rule was made returnable an ad-interim order was passed., but subsequently, taking into consideration the fact that such distribution system is in operation in almost all the Districts of Gujarat, barring few exceptions in the year 2006, learned Single Judge by the impugned order dated 14th December 2010 having refused to extend the ad-interim order and having vacated such ad-interim order, the two Letters Patent Appeals have been preferred against such common order dated 14th December 2010. For the said reason, the Letters Patent Appeals were also heard along with the main writ petitions on the request of the learned counsel for the parties.
3. According to the petitioners, they are kerosene oil dealers/agents of different Oil Companies, such as, Indian Oil Corporation Limited, Hindustan Petroleum Corporation Limited, Indo-Burma Petroleum Corporation Limited, Bharat Petroleum Corporation Limited, etc. They are doing business in petroleum products (kerosene oil) having got dealership licence from their respective Oil Companies. They have constructed huge kerosene depots where they are storing kerosene oil, and delivering kerosene oil to the fair price shop owners, retailers and others, who have got licence from their respective Oil Companies. They have been provided with licence for purchase/sale/storage for sale of essential articles, namely, kerosene oil under the Control Order. As per dealership agreement, they are supposed to sell kerosene oil in their respective areas. As per license issued under the Control Order, they are required to carry on business at the place mentioned in their respective licences. They cannot sell the product except at the place of business as mentioned in the licence. Even, they cannot carry the product for delivery, in view of the provisions of the Petroleum Act, 1934 (hereinafter referred to as `the Petroleum Act'). They can sell the kerosene oil only by using the standard weights and measures under the Standards of Weights and Measures Act, 1976 (hereinafter referred to as `the Standards Act'). They are also bound by the provisions of the Essential Commodities Act, 1955.
4. Learned counsel appearing on behalf of the petitioners assailed the impugned order dated 4th June 2010 on the following grounds:
(i) The impugned order is contrary to Clause 18(3) of the Control Order.
5. Learned counsel for the petitioners would contend that the Control Order has been issued by the State Government in exercise of power conferred under Sec.3 of the Essential Commodities Act. The impugned Control Order dated 4th June 2010 issued in exercise of power conferred under clause 24(1) of the Control Order whereunder the State Government has power to issue directions in accordance with the provisions of the Control Order. Under sub-clause (3) of Clause 18 of the Control Order, no dealer or his agent or representative or a person working on his behalf can sell or offer to sell or deliver or dispose of or distribute the essential commodity, including kerosene oil, at any other place than the place of business as shown in the licence. A perusal of the aforesaid clause makes it clear that there is a clear stipulation to the dealers not to sell, deliver, dispose of, or distribute any stock of any essential article at any other place than the place of business as shown in the licence.
6. Learned counsel for the petitioners would contend that clause 2(25) of the Control Order defines `wholesaler', which includes a dealer who holds licence, clause 2(19) defines `place of business', which means the place where the dealer sells the essential articles. Therefore, as per clause 18(3) of the Control Order, the dealer cannot deliver or distribute the essential article at any place other than the place of business as shown in the licence.
7. It was also contended that as per licence issued to the petitioners by the respondents under the Control Order, the place of business having been shown at a particular place, such as `Thusar-ni-vadi, Khambaliya Road, Bhesan', so far as it relates to petitioner - Gayatri Traders, the said petitioner cannot deliver the kerosene oil at the doorstep of the fair price shop owners. Therefore, the impugned order which directs the petitioners to deliver kerosene oil at the doorstep of fair price shop owners is, on the face of it, contrary to clause 18(3) of the Control Order.
(ii) The impugned order is contrary to clause 24 of the Control Order inasmuch as it does not tend to achieve the object of fair and equitable distribution of the essential articles in any better manner.
8. According to counsel for the petitioners under Clause 24, the State Government may issue an order to ensure fair and equitable distribution of essential articles. Accordingly, the order should tend to achieve the object of ensuring fair and equitable distribution of essential articles. The order under this clause reflects the consideration of the State Government to the above two aspects ,and such consideration apparently should also be reflected in the order. However, according to counsel for the petitioner, the impugned order does not reflect that any consideration was made by the State Government to the effect that the order is issued for ensuring fair and equitable distribution of the essential articles. In fact, the order does not seem to achieve any such object. There is, thus, no rationale behind making of the impugned order. Therefore, the impugned order should be held as contrary to the true intent and purport of the powers conferred on the State Government under clause 24(1) of the Control Order.
9. It was contended by learned counsel for the petitioner that the order does not reflect any justification of the State Government to issue the said order. It do not speak of rationale to achieve a laudable object to be achieved. The impugned order is completely silent as to the object it seeks to achieve. Besides, the impugned order is also not in consonance with the Control Order, it being in violation of various other laws. The impugned order is, therefore, unsustainable in law.
(iii) The impugned order is contrary to the Petroleum Act, 1934 and the Petroleum Rules, 2002.
10. Referring to Secs. 3 and 7 of the Petroleum Act, learned counsel for the petitioner would contend that the aforesaid provisions provide for holding of licence as a condition precedent for importing, transporting/storing petroleum products. In specific, Sec.7 stipulates that in relation to petroleum Class B (kerosene) no person can possess the said petroleum product beyond 2500 lts. without holding a licence under the Petroleum Act.
11. It was submitted that the respondent - State Government has not disputed the fact that no fair price shop owner holds licence under the Petroleum Act. The specific averment made in this regard in paragraph no.4 of the rejoinder affidavit in Special Civil Application No.10274 of 2010 has not been disputed. Accordingly, any delivery of kerosene oil to fair price shop owners beyond 2500 lts. would be in breach of the provisions of the Petroleum Act. Sec.23 of the Petroleum Act contain penal provisions subjecting the petitioner to fine and imprisonment for violation of the provisions of the Act.
12. He further submitted that besides the aforesaid fact, Rule 3 of the Petroleum Rules, 2002 stipulates that no person shall deliver or dispatch any petroleum product to any person other than a holder of storage licence. The respondent authorities have directed the appellant to deliver quantities of more than 2500 lts. of kerosene to fair price shop owners, which is evident from their statement. Accordingly, the requirement of delivering kerosene oil to such fair price shop owners would be contrary to the Petroleum Act and the rules framed thereunder.
13. Learned counsel for the petitioners would further submit that the impugned order is contrary to Rule 76 of the Petroleum Rules, 2002, which stipulates that no person shall load or unload a tanker filled with any Class of petroleum except at the place which is situated within the premises of licensee under the Rule and is so approved by the Chief Controller. Referring to the licence given to the petitioner, particularly the `licence premises' described therein, which is the address of the Depot of the petitioner, learned counsel would contend that as per Rule 76, it is not permissible to the petitioner to transport/deliver the petroleum product beyond the licence premises. The impugned circular, which is issued by the State Government is thus completely contrary to the provisions of the Petroleum rules, 2002. According to him, the State Government is not competent to issue the impugned order, which on the face of it is contrary to the Petroleum Act and the rules framed thereunder.
(iv) The impugned order is also contrary to the Standards of Weights and Measures (Enforcement) Act, 1976.
14. Learned counsel for the petitioner referred to Sec.9 whereunder there is a complete prohibition of the weights and measures other than standard weights and measures as prescribed. Sec.39 of the Act is a penal provision, which provides that whoever keeps any weight or measure other than the standard weight or measure shall be punished with a fine and/or imprisonment. The State Government has also framed the Gujarat Standards of Weights and Measures (Enforcement) Rules, 1990. As per Rule 11 of those Rules, the declaration of quantity in relation to a commodity which is in liquid form is to be measured in volume. As per Schedule XII(10) to the Rules, `Volume Measuring Instruments' are dispensing pumps. Further, as per Schedule-II-A to the Rules, dispensing pumps, weigh bridges, platform machines and such other weight or measure cannot be moved from its location.
According to petitioners, the dispensing pumps are attached to earth and operate with the help of electricity. In view of the above aspect, it was contended that when the measurement is to be made in volumes, dispensing pumps are the standard weights which cannot be removed from their location, and therefore, it is not possible to deliver kerosene oil at the doorstep of the fair price shop owners. The dispensing pumps are verified by the Inspector and stamped in accordance with the provisions of Sec.24 of the Act read with Rule 16 of the Rules framed by the State Government. Considering the nature of standard weights, it is not possible for the petitioners to carry the standard weights at the time of delivery of kerosene oil to the doorstep of the fair price shop owners, retailers and hawkers.
It is informed that the standard compartments in the transport tankers are of the capacity of 4000 and 5000 lts each. Any dispensation of quantity less than 4000 and 5000 lts and that too in absence of the dispensing pumps is virtually impossible.
(v) The impugned order is unsustainable in law in view of the facts and prescribed law.
15. Referring to the aforesaid provisions, learned counsel for the petitioners would contend that the State Government has no power under clause 24 of the Control Order to issue any order or direction contrary to the Control Order or contrary to the provisions of the Petroleum Act, 1934, the Petroleum Rules, 2002 and the Standards of Weights and Measures (Enforcement) Act, 1976. The impugned orders being executive in nature run counter to the provisions of the Control Order as also different Central Legislations as referred to above. Therefore, according to the petitioners the impugned order is not only violative of different provisions of the Central Acts, as referred to above, but is also arbitrary and violative of Article 14 of the Constitution of India.
16. It was contended on behalf of the petitioners that in view of the impugned order dated 4th June 2010, the fair price shop owners and retailers, who used to collect their respective stocks from the Depot of the petitioners directly, are now required to deliver the stock at the doorstep of fair price shop owners by the dealer. As there is no change of circumstances for issuance of the impugned order except the change of place of delivery which is not permissible in view of the provisions as referred to above, the impugned order is there by not in consonance with the equitable distribution of the essential articles. The fact is that the wholesaler or dealer has now been made like a hawker rather than a distributer of the essential articles from the Depot. Thus, the order is alleged to be violative of Article 19(1)(g) of the Constitution of India, as the same leads to unreasonable restriction in carrying out the business.
17. Mrs. Manisha Lavkumar Shah, learned Asst. Government Pleader appearing on behalf of the State while opposed the prayer, submitted that the impugned order is not contrary to Clause 18(3) of the Control Order and has been issued under Clause 24. According to her, the State Government has power under Clause 24(1) to issue directions to the dealer or purchaser for fair and equitable distribution of the essential articles for disposal, delivery or distribution. It is submitted that the definitions of `wholesaler' under Clause 2(25), `place of business' under Clause 2(19) and Clause 24(1) of the Control Order make it clear that the State Government can give directions to dealers to distribute and deliver kerosene oil at the doorstep of fair price shop owners. According to Clause 18 a license holder apart from any special conditions that may be imposed by the licensing authority, is required to observe general conditions. Under the said provisions, the State Government can also impose special conditions as done by the impugned order dated 4th June 2010. Therefore, there is no contradiction between the order dated 4th June 2010 and Clause 24(1) in directing the dealers regarding storage, sale, weighment, disposal, delivery, etc. ensuring the fair and equitable distribution of the essential articles. Clause 18(3) thus being consistent with Clause 24(1), the State Government was competent to issue the order dated 4th June 2010. The place of business, which is indicated in the license is actually not the place of business, but the office of the dealer. The dealer is supposed to make distribution of kerosene oil within the operational area. According to counsel for the State, the place of business is the operational area for the business, as stipulated in the agreement between the petitioners and the Oil Companies. Therefore, nothing wrong can be attributed if the dealers are asked for doorstep delivery in favour of the fair price shop owners situated within the operational area for the business.
18. So far as the object of the impugned order dated 4th June 2010 is concerned, learned A.G.P. would contend that the State Government intends to implement the `Scheme of Door-step Delivery in Kerosene', to achieve the object of fair and equitable distribution of essential commodities. Since the year 2006, under the Scheme, kerosene dealers of Oil Companies have been delivering kerosene oil not only on the date and route pre-fixed by Dy. F.C./D.S.O. to the fair price shop owners, retailers and hawkers. All the dealers of the Oil Companies are also delivering kerosene upto the fair price shop. The kerosene oil is unloaded in presence of the two officials, who have been authorised by the D.S.O. for the said purpose at the village/City Vigilance Committee.
19. The intention of the State Government is thus to achieve the object of fair and equitable distribution of kerosene oil, while ensuring that false inflationary demand is not created by the dealer by delaying the delivery. The diversion of kerosene and the distribution of prescribed quantity is ensured by the impugned order, since kerosene oil is to be unloaded in presence of two out of five persons specially authorised for this purpose. Since the route and days on which delivery is to be made is prefixed, it will not leave any scope for either the dealer or the wholesaler to create artificial shortage and inflated demand, and the villagers will also be benefited, who are aware of the date, time and stock of kerosene received by the wholesaler/dealer. It is contended that the door-step delivery system has been operational since the year 2006 and in the last few years State Government has met with immense success. Such delivery system has worked most effectively in all the areas, particularly rural areas.
20. So far as provisions of Petroleum Act, 1934 is concerned, learned A.G.P. would submit that the impugned order dated 4th June 2010 in no manner violates Sec.7 of the Petroleum Act or the rules framed thereunder. U/Sec.7 no licence is needed for transport or storage of limited quantities of petroleum Class B or petroleum Class C, if the quantity in possession does not exceed 2500 lts. Thus, kerosene oil to the extent of 2500 lts. can be retained without any licence. Even if the fair price shop has no kerosene licence, it can receive kerosene oil upto 2500 lts at a time. There is no restriction to the number of times a fair price shop owner may receive kerosene in a month. Further, if fair price shop owner desires to receive more than 2500 lits. of kerosene oil at one time, he can do so by obtaining a licence under the Petroleum Act. The condition was also in existence even prior to the impugned order and even at that stage the petroleum dealers including the petitioners were delivering kerosene oil to the fair price shop owners, including those who had no licence, but to the extent of 2500 lts. at one time. Therefore, according to learned counsel for the State, the question of violation of Sec.7 of Petroleum Act does not arise.
21. It was contended that if a fair price shop owner is a licencee and desires to obtain 100% of stock at one time, he can be allowed more 2500 lits. of kerosene, if storage licence is provided under the provisions of the Petroleum Act. The State Government also issued circular on 22nd November 2007 specifying the method of distribution of kerosene to licence holders, which stipulates that complete stock of the allotment of kerosene must be lifted by 22nd of each month. Therefore, there is no requirement of lifting the entire stock at one go.
22. Therefore, according to learned A.G.P., the decision of the State Government for door-step delivery is in public interest, to check the diversion of kerosene oil and to prevent black marketing of the public distribution system kerosene which is highly subsidized. It cannot be said that there is no object sought to be archived while issuing the impugned order. So far as Schedule (iv)(2) to the Petroleum Rules, 2002 is concerned, it is contended that the said Rule empowers to grant license for decanting kerosene (Class B) from mechanically propelled vehicles into containers. Schedule-I, Item 10 empowers the Controller to grant license for decanting kerosene from mechanically propelled vehicle into containers. The Controller as per application under Form X would specify the area of operation and the license holder would be permitted to decant kerosene from mechanically propelled vehicles upon an application made in Form X of the Petroleum Rules. Thus, according to learned A.G.P., State Government has not changed the place of business of license, which is the operational area, nor there will be any difficulty in delivering kerosene oil at the door-step of fair price shop owners as measurements can be taken at any place within the operational area with the help of mechanically propelled vehicles.
23. So far as the provisions of Standards of Weights and Measurements (Enforcement) Act, 1976 is concerned, learned A.G.P. while denied the allegations, submitted that the use of weights and measures other than standard weights and measures is prescribed under Sec.9, but there is no stipulation in the Government Order dated 4th June 2010, which breaches the provisions of the Act. Non-standard weights or measures cannot be used for distribution of kerosene. Each tanker contains compartment of 3000, 4000 lts. For larger quantity, the certified dip rod which is already present in each of the compartments of the tanker is used to dispense kerosene oil. The volumetric measure of 20 ltrs. 10 lts. 5 lts., 2 lts. and 1 ltr. may be used for distribution of lesser quantities of kerosene. Therefore, there is nothing in the impugned order dated 4th June 2010 as regards delivery of kerosene oil by unauthorised measures, therefore, it cannot be alleged to be in violation of the said provisions.
24. Learned A.G.P. would further contend that in absence of any provisions under the Standards of Weights and Measures Act that the volumetric pump should be a mechanized one, the argument advanced by the counsel for the petitioners cannot be accepted as volumetric measures of 20 ltrs. 10 lts. 5 lts., 2 lts. and 1 ltr. may be used for distribution of lesser quantities of kerosene oil.
25. We have heard learned counsel for the parties and noticed the rival contentions as referred to above.
26. Clause 18(3) of the Control Order prescribes dealers or agents to sell or deliver or dispose of or distribute the essential commodity at any place other than the place of business as shown in the licence, which is quoted hereunder:-
"18.(3)(i) No dealer is on his agent or his representative or a person working on his behalf shall sell or offer to sell, or as the case may be, deliver, dispose of, or distribute at any place other than the place of business as shown in the license, the stock of any essential article obtained or as the case may be received by him from the producer or the wholesaler."
Under clause 24(1) of the Control Order, the State Government, the Director of Civil Supplies, the Director of Food, the Collector of a District or any Licensing Authority can issue order for fair and equitable distribution of the essential articles, as evident from the said provisions, as quoted hereunder:
"24.
Power to issue directions to dealer or producer:(1)
The State Government, the Director of Civil Supplies, the Director of Food, the Collector of a District or any Licensing Authority may in accordance with the provisions of this order and for fair and equitable distribution of essential article by general or special order, issue to a dealer or producer of class of dealers or producers such directions regarding maintenance of accounts, maintenance of stocks, storage, sale, submission of returns, furnishing information, display of prices, issuance of invoice or cash memo, weighment, disposal, delivery of distribution of any essential article as it or he may deem fit."
The question arises whether in view of the impugned order dated 4th June 2010, the petitioners-dealers will be forced to sell or deliver or distribute the kerosene oil at any place other than the place of business as shown in the license.
27. The license issued under the Control Order was issued in Form B under clause 4(2) of the Control Order. Under Clause 3(1)(b) of the Control Order no person can carry on business as a dealer of petroleum products except under and in accordance with the terms and conditions of licence issued under the Control order. Such dealer is also required to hold a licence as a kerosene oil dealer under the Petroleum Act. From the sample copies of the kerosene oil dealership agreement, it will be evident that petroleum company has appointed the petitioners as dealers on certain terms which includes:-
"(1)
(a) The Corporation hereby appoints the Dealer as its Dealer for the retail sales supply of Kerosene for domestic purposes and light diesel oil (hereinafter referred to as "the said products") to its customers in the area more particularly specified in the schedule hereunder written (hereinafter referred to as "the said area") in accordance with the terms hereof. PROVIDED that the Corporation reserves the right at all times during the continuance of the agreement to make direct sales to Government Deptts., Railways, Corporations, Military and any other firm or person, bodies and authorities and on such direct sales the Dealer shall not entitled to any Commission allowance.
(b) The Dealer undertakes to further the sale of Kerosene/LDO within the said area to the best of his ability and to use his utmost endeavour to extend the business in kerosene/LDO as provided hereinafter in clause 2.
(c) The Dealer will during the continuance of this agreement confine himself to selling in the area of territory specified in sub-clause
(a) above and such other points as may from time to time be authorised by the Corporation in writing PROVIDED ALWAYS that the corporation may from time to time, and at any time at its absolute discretion increase, reduce, restrict or otherwise alter the said area or territory and at any time at its absolute discretion increase, reduce restrict or otherwise alter the said area or territory and nothing herein contained will be deemed to restrict the right of the Corporation to appoint other Dealers for the whole or part of the said area or territory. The Corporation will be entitled to make direct or indirect sale to any person whomsoever and for appointing other dealer for the purpose of direct or indirect sale in which event the Dealer would not be entitled to any claim for commission or allowance for any such direct or indirect sales not made through the Dealer."
28. In the licence for production/sale/search for sale of kerosene oil issued in Form B of under Clause 4(2) of the Control Order, at Clause (2)(a), it is mentioned that the dealer shall carry on the business at the place shown thereunder.
29. In the case of dealership of M/s. Gayatri Traders, in form B, following place of business has been shown:
"2(a) The seller/producer will carry out the business at the place shown hereunder:
"At Bhesan, Chanavda Plot Market, Bhesan (Sorat), Plot No.11"
(b) The essential articles which are to be sold/produced in the business should be stored in the below mentioned godown or storage place and other than that the essential articles cannot be stored at any other place:
Endorsement:
As requested in the application 11/12/1990 the place of storage shown at Sr. No.1 is deleted vide order dated 31.12.1990, and as shown at Sr. No.2, the place of storage has been registered vide implementation of order dated 1.1.1991.
Mamlatdar, Bhesan Taluka The order dated 1.1.1991 is implemented and permission is granted for the services at S.No.284/3 paiki, which plot has been converted for non-agricultural purpose situated at Thusar-ni-vadi, Khambhaliya Road, Bhesan."
30. The petitioners are required to comply with both the provisions as made under the agreement with the Oil Companies, which is in accordance with the Petroleum Act as also the provisions as made in Form B licence issued under the Control Order. If they are read together, it will be evident that their place of business is the total area as shown in the agreement with the Oil Companies, for example, Beshan Taluka, Junagadh District in respect of M/s. Gayatri Traders, though per licence, office and depot will be situated at the place as shown in the licence issued under the Control Order. Therefore, it cannot be stated that the impugned order is violative of the provisions of clause 18(3) of the Control Order, if the petitioners are asked to distribute the kerosene oil within their respective area of business as prescribed in the agreement at the doorstep of fair price shop owners and others as stipulated in the order dated 4th June 2010.
31. The respondent-State has already brought to the notice of the Court the fact that the impugned order has been issued in public interest to achieve the object of fair and equitable distribution of kerosene oil. All the time earlier it used to be alleged that false inflationary demand is created by the dealers in delaying the delivery and the kerosene oil used to be diverted and the distribution of prescribed quantity could not be made in absence of proper vigilance. Now, in view of the impugned order dated 4th June 2010, kerosene oil has to be unloaded within the prescribed date in presence of two out of five members specifically authorised for the purpose. The route having been prefixed for delivery, the villagers and others will be aware of the date, time and stock of kerosene oil received by the wholesale dealer, the distribution will be in presence of the two members specifically authorised and thereby the fair and equitable distribution of kerosene oil can be made in proper manner, which is in public interest. The claim for doorstep delivery of kerosene oil is being followed since the year 2006. The only thing is that the kerosene oil dealers, who are used to deliver kerosene oil sitting in their office, will now have to deliver the same at the doorstep of the fair price shop owners and other licencees. Thus, it cannot be stated that the impugned order is contrary to the Control Order.
32. Sec.3 of the Petroleum Act, 1934 relates to `import, transport or storage of the petroleum, save in accordance with the rules made under the Act'. Sec.7 provides that no licence is needed for transport and storage of limited quantity of petroleum Class B or petroleum Class B, which includes kerosene oil, as evident from the said provision. Relevant clause 7(i) reads as under:
"7(i)petroleum Class B if the total quantity in his possession at any one place does not exceed two thousand and five hundred litres and none of its is contained in a receptacle exceeding one thousand litres in capacity; or
(ii) xx xx"
33. From the aforesaid provision, it will be evident that a petroleum product, which may include kerosene oil, may be sold by the kerosene oil dealer to the fair price shop owners, retailers and hawkers even without licence if the quantity is below 2500 lts. In fact, they are selling kerosene oil since receipt of their licences to the fair price shop to the extent of 2500 lts without any licence. Therefore, it cannot be alleged that there will be violation of the provisions of Sec.7 of the Petroleum Act, 1934. Rule of the Petroleum Rules, 2002 stipulates that no person can deliver or dispatch any petroleum product to any person other than the holder of licence of storage, but the same is applicable to those who want to have more than 2500 lts of kerosene oil. If any person is not a licencee under the Petroleum Act, 1934, then the petitioners cannot sell more than 2500 lts. at a time, but it is always open to them to sell kerosene upto the limit of 2500 lts. to a fair price shop licensee. If any fair price shop owner or other licensee is licenced under the Petroleum Act, 1934 or Rules framed thereunder, the petitioners-dealers can sell the same to such licensee. Therefore, there is no restriction of delivery or dispatch of petroleum product in favour of a fair price shop owner upto the limit of 2500 lts. A fair price shop owner can also distribute more than 2500 lts. of kerosene oil, if such fair price shop owner holds a valid licence for storage of kerosene oil. Therefore, it cannot be alleged that the impugned order dated 4th June 2010 is violative of any of the provisions of the Petroleum Act, 1934.
34. So far as place of business under the Petroleum Rules, 2002 is concerned, we have already held that the place of business is the operational area of the dealer. By the impugned order dated 4th June 2010, no dealer has been directed to give doorstep delivery of kerosene oil to any fair price shop owner or any licencee situated outside the operational area.
35. So far as the provisions of Standards of Weights and Measures Act, 1976 is concerned, the impugned order cannot be stated to be in violation of Sec.9 of the said Act. Under the impugned order none of the dealers have been directed to violate Sec.9 of the Weights and Measures Act, 1976. They have not been directed to use any weights and measures other than the standard weights and measures. The respondents have already pointed out that the tankers contain compartments of 3000, 4000 and 5000 lts. For larger quantities, there is a provision for certified dip rod which is attached with each of the compartments of the a tanker, and is duly authorised under the Act for the purpose of measurements, therefore, there is no difficulty in selling the petroleum products in large quantities of 3000, 4000 or 5000 lts. In fact, the petitioners-dealers are purchasing the petroleum product from their respective petroleum companies and loading it in tankers containing compartments of 3000, 4000 and 5000 lts. Therefore there should not be any difficulty in making any doorstep delivery of large quantities of kerosene oil.
36. So far as lesser quantity of kerosene oil is concerned, learned A.G.P. pointed out that there is no provision under the Standards of Weights and Measures Act, 1976 that the volumetric measures can be taken only by volumetric pump, Such volumetric measures can also be taken manually of 20 lts., 10 lts., 5 lts., 2 lts., and 1lt., as being done in all cases in petroleum products sold in lesser quantities and the same cannot be held to be illegal. Therefore, the grievance of the petitioners that there will be violation of provisions of the Standards of Weights and Measures Act, 1976 cannot be accepted.
37. In view of the discussions made above, we find no case is made out to interfere with the impugned order dated 4th June 2010 issued by the respondent-State vide communication dated 8th June 2010. In absence of any merit, the writ petitions are dismissed. In the result, the Letters Patent Appeals arising out of order of refusal of interim relief and the connected Civil Applications are also dismissed. There shall be no order as to costs.
(S. J. MUKHOPADHAYA, J.) (J. B. PARDIWALA, J.) Top