Loading...

P.Ghouse Basha vs The Special Commissioner And on 9 July, 2002

Madras High Court
P.Ghouse Basha vs The Special Commissioner And on 9 July, 2002
       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 09/07/2002

CORAM

THE HONOURABLE MR.JUSTICE V.KANAGARAJ

WRIT PETITION NO.23971 of 2002 and WRIT PETITION NO.23972/2002
AND
W.P.M.P.NOS.32948 TO 32950 OF 2002.

P.Ghouse Basha                         ..Petitioner in WP.23971/2002
M.Sivappa                               ..Petitioner in WP.23972/2002

Vs.

1.The Special Commissioner and
  Commissioner of Civil Supplies and
  Consumer Protection, Chennai-600 005.

2.The Additional District Magistrate-cum-
  The District Revenue Officer,
  Dharmapuri.

3.The Tahsildar, Krishnagiri Taluk,
  Dharmapuri District.          .. Respondents in both  Wps.

Writ Petitions filed under Article 226 of the Constitution of India
praying to grant writs of Certiorarified Mandamus as stated therein.


!For petitioners in
both the Wps.           :  Mr.R.Gandhi, Senior counsel
                        for M/s.R.G.Narendhiran

For respondents :  Mr.S.Venkatesh, A.G.P.


:COMMON ORDER

Both the above writ petitions are filed praying to issue Writs
of Certiorarified Mandamus to call for the records of the second respondent
respectively in O.Mu.No.96160/2001 and O.Mu.No.94043/2001, both dated
28.12.2001 and quash the same and direct the respondents to renew the
petitioners licences to store diesel for the period from 1.1.200 2 to
31.12.2004.

2. On a perusal of the materials placed on record and upon
hearing the learned counsel for both, it comes to be known that both the
petitioners were granted licences by the second respondent under the Petroleum
Act to import 2000 litres of petroleum Class-B on 28.7.1992 and they were
renewed periodically; that when the second respondent cancelled their licences
by proceedings dated 21.6.1999, they filed W. Ps.11239 and 11350 of 1999
before this Court and a learned single Judge of this Court, by a common order
dated 14.9.1999 allowed both the writ petitions on ground that the second
respondent has not issued any notice to the petitioners, before cancelling
their licences, but, however, given liberty to the second respondent/D.R.O.
to take further action, if necessary, after giving due opportunity and notice
to the petitioners.

3. It further comes to be known that thereupon, by the orders
dated 4.2.2000, the D.R.O. cancelled the licences of the petitioners relying
on a communication received from the first respondent dated 31.5.1 999, which
reads that the issue of licence for retail sale of motor spirit and high speed
diesel by D.R.O. is violative of Clause 3(vii) of Motor Spirit and High Speed
Diesel (Regulation of Supply and Distribution and Prevention of Malpractices)
Order 1998 (hereinafter referred to as the Control Order) and hence to take
corrective action immediately. Challenging the said cancellation of their
licences, the petitioners again filed W.P.Nos.4413 and 4416 of 2000 before
this Court and a learned single Judge of this Court, by order dated 10.8.2000,
allowed the said writ petitions and since the main contention of the
petitioners therein is that though the respondents have relied on the order of
the first respondent dated 31.5.1999, they have not been furnished with a copy
of the same, the learned Judge directed the authorities to furnish copy of the
said proceedings dated 31.5.1999 to the petitioners and pass orders after
giving opportunity to the petitioners. Afterwards, the respondents issued
notices to the petitioners dated 25.10.2000 thereby furnishing a copy of the
order of the first respondent dated 31.5.1999, and the petitioners submitted
their explanations on 16.11.2000. Thereupon, the second respondent, by his
proceeding dated 13.12.2000 cancelled the licences issued to the petitioners.
However, the petitioners, on 5.12.2001, have filed petitions seeking renewal
of their licences as though their licences were still in force, in spite of
the fact that their licences have been cancelled, as aforementioned, for which
the second respondent has rejected their applications for renewal of their
licences as per the impugned orders dated 28.12.2001 with the remarks that
since their very licences have been cancelled as per his order dated
13.12.2000 itself, the question of renewal of the same for a further term does
not arise at all.

4. The main contention of the petitioners is that they were
granted the licences under the Petroleum Act and now, the second respondent
cancelled their licences pursuant to the order of the first respondent dated
31.5.1999, which says that granting of licences by the DRO is violative of
Order 3 (vii) of the Control Order. The said Control Order, according to the
petitioners, cannot have any overriding effect over the Petroleum Act and
hence their licences cannot be cancelled based on such an order passed by the
first respondent.

5. In support of their contention, the learned senior counsel
appearing on behalf of the petitioners would rely on a judgment of the Bombay
High Court delivered in THE MUNICIPAL CORPORATION OF GREATER BOMBAY vs.
BHARAT PETROLEUM CORPORATION LIMITED AND OTHERS
reported in AIR 1993 Bombay
54, wherein by a notification No.P.104, dated 4.5.1950 issued under Section 31
of the Petroleum Act, 1934, the operation of Section 394 of the Bombay
Municipal Corporation Act, 1888 was restricted, insofar as it related to
storage and transportation of petroleum products and the Bombay High has held:

“There was a repugnancy between the Central Act i.e. Petroleum Act and the
State Act i.e. The Corporation Act … it is clear that to the extent of
notified category, there is a conflict between the two enactments and
therefore to the extent of notified category, S.394 of the Corporation Act
will have no application. The Petroleum Act therefore will supercede the
provisions of S.394 of the Corporation Act, by virtue of Art.254 of the
Constitution.”

6. On 4.7.2002, when the above writ petitions came up for
admission in the presence of the learned senior counsel appearing on behalf of
the petitioners and the Additional Government Pleader taking notice on behalf
of the respondents and resisting the same, emphasis was laid on the part of
the petitioners to the prayers of the writ petitions to quash the impugned
orders dated 28.12.2001 and to renew the petitioners’ licences to store diesel
for the period from 1.1.2002 to 31.12.2004.

7. The impugned orders dated 28.12.2001 are nothing but
replies to the request of the petitioners made on 5.12.2001 to renew their
licences to keep diesel and petrol in the addresses mentioned therein, since
their licences were to expire on 31.12.2001, for a further term of three years
i.e. till 31.12.2004.

8. In answer to the said renewal for three years requested by
the petitioners as per their applications dated 5.12.2001, the impugned orders
dated 28.12.2001 have been passed by the second respondent not only revealing
that as early as on 13.12.2000 itself, the petitioners’ very licences were
cancelled as seen in reference No.2 of the orders impugned but also asserting
that the petitioners are not entitled to get anymore licences of that sort
since possession of the essential commodities such as diesel or petrol by the
petitioners or granting of the very licences by the authorities is violative
of Order 3 (vii) of the Control Order.

9. In the above scenario, the petitioners, in spite of having
known that their licences have been cancelled by the order of the authority
dated 13.12.2000 itself, after one year of such cancellation, had filed
applications to the same authority, the District Revenue Officer, for renewal
of the licences for a further period of three years, which is nothing but a
fraud and cheating perpetrated by the petitioners on the designated authority
in spite of knowing that their licences were cancelled as early as on
13.12.2000 and they could not be renewed any further much less by those
applications made after one year of such cancellation.

10. It is under these circumstances, in reply to such
fraudulent applications filed on the part of the petitioners, the second
respondent/District Revenue Officer and the Licensing Authority had passed the
impugned orders stating thereby that since the licences issued in their favour
had been repugnant to or violative of Order 3(vii) of the Control Order and
further on account of the same reason their licences had already been
cancelled, the question of renewing the same does not at all arise, thus
expressing his inability to renew the licences which were non-existent on the
date of the applications of the petitioners for renewal.

11. It is relevant to note that many writ petitions have been
filed by the petitioners in the past and directions have been issued in every
such writ petition to the second respondent and ultimately, in full
consideration of all the representations made on the part of the petitioners,
the second respondent had passed the ultimate orders dated 13.12.2000 thereby
cancelling the licences of the petitioners and in spite of full knowledge of
the cancellation of the said licences, the petitioners had filed applications
for renewal of the cancelled licences as per their applications dated
5.12.2001 i.e. roughly after one year of the cancellation of the licences
thereby giving an impression to the second respondent Licensing Authority as
though the said licences had been in force and were only expiring on
31.12.2001, which is nothing but a calculated fraud played by the petitioners
with the Licensing Authority. In the above circumstances, the lower authority
has not only declined to pass any order on such renewal applications but also
has disclosed the fraud perpetrated on the part of the petitioners making the
Licensing Authority believe that their licences (which had been cancelled as
early as on 13.12.2000) were still in force and were going to expire only on
31.12.2001 thus seeking the renewal of the same, which must be taken serious
note of.

12. While such being the fact, the learned senior counsel
appearing on behalf of the petitioners would strive hard to convince the
Court, citing a judgment of the Bombay High Court reported in A.I.R. 1993
Bombay 53 wherein by a notification dated 4.5.1950 issued under Section 31 of
the Petroleum Act, 1934, the operation of Section 394 of the Bombay Municipal
Corporation Act, 1888 was restricted insofar as it related to storage and
transportation of petroleum products and the said High Court observed that
`there was a repugnancy between the Central Act i.e. Petroleum Act and the
State Act i.e. The Corporation Act’ further remarking that `it is clear that
to the extent of notified category, there is a conflict between the two
enactments and therefore to the extent of notified category, Section 394 of
the Corporation Act will have no application and the Petroleum Act will
supercede the provisions of Section 394 of the Corporation Act by virtue of
Section 254 of the Constitution of India.’

13. The above judgment has absolutely no application to the
cases in hand since there is neither repugnancy nor conflict between a Central
legislation and the State legislation in the cases in hand. It is only the
Petroleum Act and the directive issued by the Commissioner, civil Supplies
pursuant to Clause 3(vii) of the Control Order which are relevant in the cases
in hand and the said Control Order has been passed well in exercise of the
powers conferred by Section 3 of the Essential Commodities Act,1955, which is
yet another Central legislation. Therefore, citing the above judgment and
arguing as though the Central legislation and the State legislation are in
conflict with each other so as to bring in the arguments of repugnancy or
conflict are absolutely of no application to the context of the cases.
Further more, the petitioners have neither seem to have challenged the
cancellation order dated 13.12.2000 nor had the said orders been cancelled and
therefore they have become final and holds good till date, much less on
5.12.2001 when the petitioners filed their renewal applications before the
Licensing Authority, the 2nd respondent.

14. Moreover, the petitioners having committed fraud and
cheating of the Government authority in seeking renewal of licences that were
already cancelled and dead, does not have locus standi either to file the
above writ petitions or to testify the validity of the law on the subject as
they have done in the above writ petitions. Having failed to perpetrate their
fraudulent acts with the Licensing Authority and the District Revenue Officer,
Dharmapuri, now the petitioners have come up to play the same fraud on the
High Court by means of the above writ petitions and hence the above writ
petitions deserve only to be dismissed with exemplary costs.

In result,

(i)Both the above writ petitions are not only absolutely devoid of merit but
also an attempt to play fraud on the judicial process and therefore each of
the above writ petitions is dismissed, at the admission stage itself, with an
exemplary cost of Rs.10,000/= (Rupees Ten Thousand Only).

(ii)The District Revenue Officer, Dharmapuri, the second respondent herein, is
hereby directed to initiate prosecutions against the petitioners through the
Civil Supplies C.I.D. Police, Dharmapuri District within two weeks from the
date of receipt of a copy of this order and report compliance to this Court.

Consequently, W.P.M.P.Nos.32948 to 32950 of 2002 are also
dismissed.

Index: Yes
Internet: Yes
Rao
9.07.2002.

To

1.The Special Commissioner and
Commissioner of Civil Supplies and
Consumer Protection, Chennai-600 005.

2.The Additional District Magistrate-cum-

The District Revenue Officer,
Dharmapuri.

3.The Tahsildar, Krishnagiri Taluk,
Dharmapuri District.

4.The Civil Supplies C.I.D.,
Dharmapuri District,
Dharmapuri.

V.KANAGARAJ, J.

Common Order in W.P.Nos.23971
and 23972/2002 and WPMPs.

Leave a Comment

Your email address will not be published. Required fields are marked *

* Copy This Password *

* Type Or Paste Password Here *

Cookies help us deliver our services. By using our services, you agree to our use of cookies. More Information