IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :07.03.2008 CORAM THE HONOURABLE MR. JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR. JUSTICE S.R.SINGHARAVELU WRIT APPEAL NO.2449 OF 2001 S.S.Ramaswamy ... Appellant Vs. 1. The Special Commissioner of Civil Supplies & Consumer Protection, Chepauk, Chennai-5. 2. The District Revenue Officer, Tiruchy. 3. The District Supply Officer, Tiruchy. ... Respondents Writ Appeal filed under Clause 15 of the Letters Patent against the order of the learned single Judge dated 15.6.2001 made in W.P.No.16132 of 1994. For Appellant : Mr.D.Peter Francis For Respondents : Mr.P.Subramanian, G.A. ******* JUDGMENT
(Judgment of the Court was made by Elipe Dharma Rao, J.)
The writ appeal is directed against the order of the learned single Judge in dismissing the writ petition wherein the appellant sought for quashing the proceedings of the Respondents dated 22.8.1994, 19.10.1992 and 18.3.1991 and for a direction to hold the appellant as a retailer falling within the meaning of G.O.Ms.SNo.202, Food and Co-operation Department dated 23.3.1982.
2. The appellant and his wife are registration certificate holders under the Tamil Nadu Kerosene (Regulation of Trade) Order 1973. Pursuant to the policy of the Government issued in G.O.Ms.No.202 Food and Co-operation Department dated 23.3.1982, the State Government directed that the wholesalers in the district shall henceforth supply the kerosene only to the following categories of retailers:-
(a) Retailers operating under the public distribution system i.e. the fair price shops run by the Tamil Nadu Civil Supplies Corporation and Co-operatives;
(b) the private retailers holding kerosene retail registration certificate and who are exclusively dealing with kerosene for their livelihood and were attached with family cards not exceeding 500 for distribution of kerosene to the cards; and
(c) Hand cartmen holding retail registration certificate and were doing street vending in kerosene.
3. The said guidelines were challenged before this Court and this Court in the judgment reported in “1984 WLR 77” struck down the classification as unreasonable and violative of Article 14 of the Constitution of India and on appeal by the Government, the Apex Court in the judgment in Civil Appeal Nos.4082 to 4098 of 1989 arising out of SLP Nos.11459 to 11463 of 1984 held that the above classifications were reasonable and are not violative of Article 14 of the Constitution of India. After the orders of the Apex Court, the first respondent issued instructions to stop the supply to retailers. Accordingly, the supply to the appellant/petitioner was abruptly stopped which necessitated the appellant to file the writ petition before this Court and the writ petition was allowed with a direction to hold an enquiry to find out whether the appellant/petitioner is depending upon the kerosene trade for his livelihood. Pursuant to the said direction, an enquiry was conducted by the third respondent, who by order dated 18.3.1991 held that the appellant/petitioner owns a house valued at Rs.50,000/-; that he owns a petty shop at Door No.58, Sannathi Street, Thiruvanai Koil and that he is getting an income of Rs.500/- per month. Therefore, he is not entitled to supply of kerosene. The appellant/petitioner filed appeal to the second respondent and the same was dismissed on 19.10.1992. Again the appellant/petitioner filed revision before the first respondent and the same was rejected on 22.8.1994, accepting the contention of the appellant/petitioner that once he is considered as a person solely depending upon the business in selling kerosene for the purpose of grant of one registration certificate, the consideration of the licences for other areas cannot be rejected on the said ground. However, request of the petitioner by placing reliance on clause(b) of G.O.Ms.No.202 Food and Co-operation Department dated 23.2.1982 on the ground that the appellant/petitioner is already having a retailer registration certificate and if the present request for grant of registration certificate is granted, the appellant/petitioner is having more than 500 cards which would not be in conformity with clause (b) of the Government letter dated 23.3.1982. Aggrieved by the said order, the appellant/petitioner filed the writ petition.
4. The issue involved in the writ appeal is whether the appellant/petitioner was granted two license under Rule 5 of the Tamil Nadu Kerosene Control (Regulation trade)Order 1973 can be supplied of kerosene as per the policy of the Government enunciated under G.O.Ms.No.202, Food and Co-operative Department dated 23.3.1982 and delegated power to the Commissioner of Civil Supplies, the Collector or the Licensing Authority to Direct kerosene wholesalers to supply kerosene only to specified classes of retailers and the wholesalers shall abide by such direction, under G.O.Ms.No.978, Food and Co-operation, dated 29.12.1981. In pursuance of which the Commissioner has issued directions, which runs as follows:
“a) Retailers operating under the Public Distribution System i.e., the Fair Price shops run by the Tamil Nadu Civil Supplies Corporation and Co-operatives:
b) Private retailers holding kerosene retail registration certificate and who are exclusively dealing with kerosene for their livelihood and were attached with family cards not exceeding 500 for distribution of kerosene at the scales prescribed to the family cards; and
c) Hand cartman holding retail registration certificate and are doing street vending of kerosene.”
5. The appellant/petitioner is doing retail distribution of kerosene in Public Distribution System by virtue of Retail Registration Certificate bearing Nos.247/1974 and 249/1974 at Trichy Town and Tiruvanaikoil. As per the policy of the Government and as per Clause (b) of the instructions of the Commissioner he was denied supply of kerosene for two licenses each for 500 family cards for distribution of kerosene. He approached the District Supply Officer, Trichy by way of appeal dated 10.4.1991 and the same was dismissed on 19.10.1992. Thereafter, he approached the Special Commissioner and Commissioner of Civil Supplies and Consumer Protection, Chennai by way of filing revision dated 6.11.1992 and the same was rejected on 22.8.1994. Aggrieved of the said orders, he filed the writ petition.
6. The learned single Judge after considering the facts and circumstances, held that if the retailer is allowed to have up to 500 cards for each licence, by virtue of Order 5.8, an individual can have more than one licence and by that he can have more than 500 cards. If that interpretation is given to clause (b) of the said letter, the very purpose of imposing restrictions of 500 cards to a retailer would be defeated. When once the said classification is upheld by the Apex Court, it should be held that the restriction of 500 cards should be only with reference to the individual retail licence. Admittedly, in this case, the appellant/petitioner is already owning a registration certificate to vend kerosene on retail basis wherein the appellant/petitioner can have cards up to 500 in number. If the present licence sought by the petitioner is also granted, the petitioner will be having another 500 cards and put together would be having 1000 cards. The purport and object of the restrictions, restricting 500 cards is only with reference to the individual retailer and not with reference to each licence. Ultimately the learned single Judge dismissed the writ petition. Aggrieved of the said order, the writ appeal is filed.
7. We have heard the learned counsel for the appellant and the learned Government Advocate.
8. We have considered the materials placed on record. The petitioner was granted two licences by the licensing authority under Rule 78 of the Rules and the two licences were registered and certificates were issued. Thereafter, by virtue of the directions issued by the Commissioner while exercising the power delegated by the Government, denying supply of kerosene to the two licenses or registered certificates of the appellant under Clause (b) of the instructions.
9. As far as the policy of the Government is concerned, it could not be taken into consideration while the appellant is having valid licence and obtained certificates and he is denying the finding of the department that he is having house worth about Rs.50,000/- at Door No.58, Tiruvanai koil and running a shop and earning Rs.500/- per month. On the other hand his explanation is that his son is running a shop and earning income from it. Therefore, we consider it appropriate that so long the appellant is having valid licenses and have registered as per clause (b) and each license has to be supplied kerosene for 500 family cards attached to the retailer. Therefore, it cannot be denied supply of kerosene to the two licences which were
ELIPE DHARMA RAO, J.
AND
S.R.SINGHARAVELU, J.
gr.
registered. While granting licences under Rule 5.8 of the Rules denying supply according to the directions issued by the Commissioner is considered to be illegal and unreasonable. Therefore, the order of the learned single Judge is set aside and the writ appeal is allowed. No order as to costs.
(E.D.R.J.,) (S.R.S.J.,) 07.03.2008 gr. Index:Yes Internet: Yes To 1. The Special Commissioner of Civil Supplies & Consumer Protection, Chepauk, Chennai-5. 2. The District Revenue Officer, Tiruchy. 3. The District Supply Officer, Tiruchy. W.A.No.2449 of 2001