JUDGMENT
1. These two appeals are directed against a common judgment dated 16th April, 2004, passed by the learned Single Judge on two writ applications, which had been filed by the two appellants before us. The appellant in L.P.A. No. 417/2004 is the Jharkhand Kerosene Dealers’ Association, whereas in the other appeal, being L.P.A. No. 416/2004, the appellant is the. All India Kerosene Oil Dealers’ Federation. In both the writ applications, the subject-matter of challenge was the order dated 22nd December, 2003, passed by the State Government in respect of commission to be paid to Kerosene Oil Wholesale Dealers in the different districts within the State.
In order to appreciate the order, which was passed, one will have to consider the factual background which has been set out by the learned Single Judge in his impugned order.
2. It will appear that the Government of India in its Petroleum and Chemicals Ministry had appointed a Committee to examine and report in the matter of determination of the ex-refinery process of refined petroleum products. The said Committee fixed the commission at Rs. 7.70 on the sale of Kerosene, when the price of one Kilo-litre was Rs. 358.80. While fixing the said rate, the Committee had taken note of the fact that in the year 1965 the commission to the Agents was being paid at the rate of 2.15% of the value of Kerosene Oil per Kilo-litre sold. The writ petitioners wrote to the Ministry of Petroleum requesting fixation of Agents’ commission at the rate of 2.15% of the total value per Kilo-litre and also other allowances at the rate of 1% leakage on the cost value, barrel depreciation handling and other expenses. Thereafter, the writ petitioners in CWJC No. 1471/2001 filed a writ petition, before the Patna High Court being CWJC No. 11057/1996, which, according to the appellants, was disposed of with a direction to the respondents to fix the rate of commission @ 2.15% per barrel of Kerosene Oil. Subsequently, the petitioner-Federation filed a petition for modification of the said order dated 13th May, 1998, on the further submission that the competent authority for fixing such commission was the Union Of India in its Ministry of Petroleum. On such submission, the earlier order dated 13th May, 1998, was modified by the order dated 13th October, 1998, with liberty to the petitioner to approach the Union Of India for redressal of its grievances. It appears that the petitioners thereafter made a representation to the Commissioner-cum-Secretary, Food Supply & Commerce Department, Government, of Bihar, requesting that the commission @ 2.15% be given to those whole-sale dealers, who are the members of the petitioner-Federation. The Deputy Secretary to the Government of Bihar, Food, Civil Supply and Commerce Department, vide Circular dated 10th August, 1999, addressed to the District Magistrates of three districts, namely, Rohtas, Bhojpur and Bokaro, directed them to take a proper decision in the light of the judgment and order dated 13th May, 1998 passed by the Patna High Court. Thereafter, according to the appellants, the District Magistrates/Deputy Commissioners in the States of Bihar and Jharkhand had allowed 2.15% commission plus leakage and other expenditures to the wholesale kerosene dealers of the respective districts. Subsequent thereto, the Commissioner-cum-Secretary, Food, Civil Supply and Commerce Department, Government of Jharkhand, issued a letter dated 29th December, 2003, addressed to all the Deputy Commissioners, Jharkhand, informing them that the Ministry of Petroleum and Natural Gas, Government of India, is the competent authority to fix the rate of commission and not the Deputy Commissioner; therefore, the payment of 2.15% commission to the members of the Dealers’ Association was illegal and was to be stopped forthwith. As indicated hereinabove, it is the said order, which was the subject-matter of challenge in the two writ applications, which were filed on behalf of the said two writ petitioners.
3. The learned Single Judge, while considering the two writ applications, appears to have been convinced that the orders were passed by the district-authorities of the State of Jharkhand on a misrepresentation of the order passed by the Patna High Court to the effect that the High Court had itself directed that the rate of commission be fixed @ 2.15% per Kilo-litre, which, in fact, was not the case. The learned Single Judge also took note of the fact that taking advantage of the said orders, the members of the petitioner – Association and Federation had gained illegal advantage by receiving commission, and, accordingly, while dismissing the writ applications, directed that the Deputy Commissioners of the concerned districts would be entitled to take action against the said dealers for recovery of the amounts, which, according to the learned Single Judge, had been illegally collected by them.
4. Appearing in support of the first of the said appeals, Mr. R.K. Murarka urged that the order impugned in the writ application had been made on the erroneous supposition that the State Government did not have the authority to add to the price which had already been fixed both for wholesalers and retailers in respect of the sale of kerosene. Furthermore, an erroneous impression was given that the orders were passed by the district authorities at the behest of the High Court at Patna in terms of its order passed on 13th May, 1998.
5. Mr. Murarka submitted that the said apprehension on behalf of the State Government and its authority was entirely erroneous and uncalled for, since having regard to Entries 33 and 34 in the Concurrent List of the 7th Schedule to the Constitution, both the Central Government and the State Government were entitled to take steps for fixing the price of commodities under the Essential Commodities Act and the various Control Orders passed thereunder. Mr. Murarka submitted that since the State Government had ample authority to pass the order, which had, in fact, been passed by the district-authorities relating to fixation of commission to wholesale dealers on the sale of kerosene, the impugned order dated 22nd December, 2003, was based on a wrong premise and was liable to be set aside along with the judgment and order of the learned Single Judge.
6. Mr. Gourab Kumar Banerjee appearing for the appellant in the other appeal added to Mr. Murarka’s submission by urging that the source of the authority for fixing commission over and above the price fixed lay with the State Government as would be evident from the provisions of the Kerosene (Restriction On Use And Fixation Of Ceiling Price) Order, 1993, which clearly indicate that the declared price in relation to the kerosene sold under the Public Distribution System means maximum selling price declared by the Central Government from time to time with reference to an order which would include such other charges, rates, duties and taxes prescribed by the State Government or by the District Collector in a case of an area in a State. Mr. Banerjee submitted that the said issue had fallen for the decision of the Hon’ble Supreme Court in the case of Nagrik Upbhokta M. Manch v. Union Of India and Ors. reported in (2002) 5 SCC 466, wherein while considering the provisions of the said Control Order, the Hon’ble Supreme Court had, in no uncertain terms, found that the State Government had the authority to determine the wholesale price along with the Central Government to include, amongst others, octroi, sales tax and transportation cost from the Oil Companies to the Storage Depots, which would be the actual charges in addition to the price as determined by the Central Government.
7. Mr. Banerjee urged that there was no ambiguity regarding the powers of the State Government to prescribe, in addition to the Central Government price, the amount to be included by way of transportation larges etc. He, therefore, urged that the State Government had acted on a wrong premise in issuing the impugned order dated 22nd December, 2003, since it had the authority. Mr. Banerjee added that till such time as the interim order was passed on the writ applications, the amount which had been collected on account of the added commission of 2.15% per Kilo-litre had been collected under orders which till then were, in fact, valid.
8. Appearing for the Central Government, Dr. Gupta reiterated the stand which had been taken in the various documents annexed with the writ applications to the effect that the State Government would also have the authority to add to the settled prices the commission to be paid to the wholesale dealer on account of transportation charges etc.
9. On behalf of the State Government, although an attempt was made to support the order dated 22nd December, 2003, it was ultimately conceded that the State Government would also have the authority to pass orders under the provisions of the Control Order of 1993.
10. Having considered the submissions made on behalf of the respective parties, we are also convinced that the State Government had erroneously declared in the impugned order that the competent authority for fixation of the commission payable is the Ministry of Petroleum & Natural Gas, Government of India and not the Deputy Commissioners of the districts. To that extent, the other impugned in the writ applications appears to be unjustified. Although, reference had been made to the order passed by the Patna High Court in CWJC No. 11057/1996 dated 13th May, 1998 and the subsequent order dated 13th October, 1998, we are of the view that reference to such orders was incompetent since the High Court had at no stage directed that the said commission was to be paid at the rate indicated but had merely directed that the matter be taken up for consideration by the concerned authorities, which, in fact, was, in our view, the order which could have been made in the circumstances.
11. The learned Single Judge, in the instant case, appears to have been swayed by the fact that the order of the Patna High Court in the aforesaid case had been referred to for the purpose of fixation of commission.
12. In the aforesaid circumstances, we are of the view that no useful purpose will be served in keeping these appeals pending before us and the same may be disposed of even at this stage, having regard to the order which we propose to pass.
13. As far as the collections made by the appellants in terms of the earlier orders passed by the District Magistrates and Deputy Commissioners till the date of passing of the interim order on 23rd January, 2004, are concerned, we are of the view that the learned Single Judge was not justified in law in directing that the Deputy Commissioners of the concerned districts would be entitled to take action against the dealers for recovery of the amounts which had been collected prior to the said order. We are of the view that the said part of the order of the learned Single Judge cannot stand and is accordingly set aside. The appellants will be at liberty to make fresh representations to the State Government having regard to the views expressed by us hereinabove that the State Government is competent to consider the question of payment of commission to the wholesale dealers under the 1993 Control Order, and if such representations are made, the same are to be disposed of by the State Government and its authorities within one month from the date of making of such representations, after giving the representatives of the appellants a proper opportunity of being heard and producing relevant documents. The State Government will be entitled to take a decision in respect of the amounts collected by the appellants on the basis of the interim order passed on 23rd January, 2004 and the retention of such amounts shall be subject to the decision of the State Government.
Both the appeals are disposed of with the aforesaid observations and directions. There will be no order as to costs.