IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 14-03-2008 CORAM THE HONOURABLE MR. JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR. JUSTICE M. VENUGOPAL WRIT APPEAL NOs.1445 to 1459 OF 2006 1. The Secretary to Government, Co-operation, Food and Consumer Protection Department, Fort St. George, Chennai 9. 2. The Commissioner of Civil Supplies & Consumer Protection Department, Chepauk, Chennai 5. .. Appellants in WA.No.1445/97 Vs. K.M. Nandakumar S/o. late K. Muneeswaran ..Respondent in WA.No.1445/97
Appeals filed under Clause 15 of the Letters Patent against the common order of the learned single Judge in W.P.Nos.14644 of 2005 & Batch dated 20.9.2006.
For Appellants : Mr.S. Ramasamy
Addl. Advocate General
for Mr.S. Gopinathan, AGP.,
For Respondent : Mr.D. Peter Francis
in WA.No.1445/06
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COMMON JUDGMENT
(Judgment of the court was delivered by ELIPE DHARMARAO, J)
These writ appeals are filed against the common order passed in W.P.NOs.14644 of 2006 & Batch, wherein the present respondents had prayed for issuing writ of Certiorarified Mandamus to call for the records of the first appellant, the Secretary to Government, Co-operation, Food and Consumer Protection Department, passed in G.O.Ms.No.337 dated 1.11.2004 as well as the instruction of the second respondent made in Lr.No.K4/39857/2004, dated 29.11.2004 in so far as against the present respondents with regard to Point No.2, 4 and 6, being contrary to the judgment of the Supreme Court in Civil Appeal Nos.8148-8152 of 2003, dated 6.10.2003 and consequently direct the present appellants to hold an enquiry, dehors point Nos.2, 4 and 6 by either issuing or renewing the Registration Certificate to the present respondents.
2. The facts leading to filing of the writ petitions and the present appeals are as follows :-
The appellants are the legal heirs or the representatives of the original holders of the licence (Retail Registration Certificate) issued under the Tamil Nadu Kerosene (Regulation of Trade) Order, 1973 to vend kerosene to the consumers through cart. When the original licence holders expired, his legal heirs were denied renewal of such licence as per the policy decision of the Government. At that stage, some of the legal heirs of the original licence holders as well as Thiruchirapalli District Kerosene Small Merchant’s Welfare Association, representing the case of the legal representatives, filed various writ petitions before the High Court. The learned single Judge,after hearing both sides, rejected the claim of the petitioners in such writ petitions on the ground that since the Government has taken a policy decision not to renew the registration certificate in order to regulate the kerosene trade, it cannot be interfered with. Learned single Judge also observed therein that fundamental rights guaranteed under Article 14 of the Constitution have not been violated and found that once the licence expires, the registration certificate automatically lapses and there is no question of renewal of the registration certificate. On the above conclusions, the learned single Judge uphold the order passed by the Government. Against such order, the petitioners in such writ petitions filed W.A.Nos.1305 to 1309 of 2001. The main question posed before the Division Bench is as to whether after the demise of the licence holders, the legal heirs are entitled to the renewal of registration certificate to vend kerosene to the domestic consumers through hand-cart? While considering the aforesaid question, the Division Bench has taken into consideration the G.O.Ms.No.202, Food Co-operation Department dated 23.02.1982 and subsequent circulars issued by the Government dated 7.9.1994, 9.5.1996 and 5.12.1997, under which the instructions have been issued to extend the benefit of re-issue of Retail Registration Certificate in the event of death of the Hand-cartmen and in case application for renewal was made beyond the time limit stipulated, grant of fresh licence was considered and also taken into consideration the subsequent circular dated 24.2.1999, which was impugned in the writ petitions, wherein it was directed that the applications made after the expiry period for fresh licence and renewal would be rejected. The Division Bench taking into consideration the facts and circumstances of the case and keeping in view the fact that issuance of licence to vend kerosene through hand-cart was only to uplift the members belonging to poor family, disposed of the writ appeals with a direction to the respondents therein to consider the request of the petitioners therein for renewal of registration certificates in terms of circular dated 7.10.1994.
3. As against the aforesaid order, the Government has preferred Civil Appeal Nos.8148 to 8142 of 2003 before the Honourable Supreme Court. It was stated by the Government before the Hon’ble Supreme Court that the circular dated 7.10.1994 was withdrawn by the subsequent Circular Letter No.K4/9678/99 dated 24.2.1999. Taking into consideration the subsequent circular dated 24.2.1999, the Hon’ble Supreme Court observed as follows:-
“However the plea though having merit, would not make any substantial difference in the facts of the case. In substance, what the High Court has said is that the retail registration certificate holders being poor persons and small vendors the mere factum of death of the licensee would not bring to an end a licensee and the licence if valid and surviving on the date of the death of the licensee shall be available for considering the prayer of renewal by the legal heirs of the deceased licensee. No fault can be found with the view so taken by the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India. However, we clarify that though we are not interfering with the order of the High Court, the order shall not be considered as reviving the circular dated 7.10.1994 which stands withdrawn.”
4. Thereafter, the Government issued G.O.Ms.No.337 Co-operation, Food and Consumer Protection Department, dated 1.11.2004 whereunder by prescribing a time-limit, permitted the Commissioner of Civil Supplies and Consumer Protection to consider the 211 cases in which the licencees died during the period between the date of withdrawal of concession i.e., 24.2.1999 and the date of judgment of the Hon’ble Supreme Court i.e., 6.10.2003 on merits, as a special case, for issue of licence (Retail Registration Certificate). Consequently, referring the above G.O., the Commissioner of Civil Supplies and Consumer Protection Department, the second appellant, issued circular in Letter No.K4/39857/2004 dated 29.11.2004 whereunder he has requested to take into account eight points while issuing Retail Registration Certificate to the legal heirs whose family is in indigent condition due to demise of the original licensee and solely depends on kerosene business for livelihood. The aforesaid G.O., as well as the subsequent circular are being impugned in the batch of writ petitions.
5. While dealing with the writ petitions, the learned single Judge, after taking into consideration the judgment of the Division Bench as well as the Hon’ble Supreme Court, the learned single Judge disposed of the writ petitions with a direction to the present appellants to implement the order of the Supreme Court.
Against the aforesaid order, the present batch of writ appeals have been filed.
6. The point for consideration in this appeal is whether the time frame prescribed by the Government in G.O.Ms.No.337 dated 1.11.2004 and in the circular of the second respondent dated 29.11.2004, is reasonable in view of the decision rendered by the Hon’ble Supreme Court in the connected matters ?
7. Learned counsel appearing for the appellants contended that when the State had taken a policy decision not to issue licence to the individual by circular dated 24.2.1999, the learned sinlge Judge ought to have directed for renewal of licence. He has further contended that the G.O.Ms.No.337 dated 1.11.2004 and the consequent circular are in consonance with the order of the Supreme Court and, therefore, the time limit prescribed in the aforesaid G.O., and the circular has to be upheld. He has further contended that when the period of licence is over, the question of renewal depends upon the discretion of the State and when the original licenseholder is expired, there is no question of renewal and the licence expires with such person and, therefore, the writ appeals have to be allowed.
8. Learned counsel for the respondents contended that in a similar case the Hon’ble Supreme Court and the Division Bench of this Court, while considering the fact that the retail registration certificate holders being poor persons and small vendors, observed that the death of the licensee would not bring to an end a licensee and the license, if valid and surviving on the death of the licensee, shall be available for considering the prayer of renewal by the legal heirs of the deceased licensee.
9. In the present batch of cases, the respondents are legal heirs or representatives of the original licence (Retail Registration Certificate) holders. It is not in dispute that the licences were issued for upliftment of the poor persons to vend kerosene to the consumers through hand-cart. Initially the Government by G.O.Ms.No.202 dated 23.2.1982 extended the benefit of re-issue of Retail Registration Certificate in the event of death of the original licensee to his legal heirs. By way of subsequent letter dated 7.9.1994, the authorities enabled re-issuance of license to the legal heirs of the hand-cartmen. Subsequently, by way of letter dated 9.5.1996 further instruction was issued by which in case application for renewal was made beyond the time limit, instead of renewal of registration certificate, grant of fresh licence could be considered. The above instruction was also modified by the authorities under the letter dated 5.12.1997, wherein the applications filed after 30th November, but before the expiry of licence and prior to 31st January of every succeeding year would be considered. Therefore, from the above G.O., and the instructions, it was made clear that when renewal application was within time, licence would be renewed and, where the renewal application was made beyond the time limit, instead of renewal, even fresh licence would be issued. Thereafter, the Government had issued Letter dated 24.2.1999, by which the earlier circular dated 7.9.1994 was withdrawn, which fact was brought into notice before the Hon’ble Supreme Court when the connected matter was taken up in appeal.
10. Once the circular dated 7.9.1994 is the subject matter of both the High Court and the Supreme Court, which was withdrawn by another circular dated 24.2.1999, the subsequent circular, wherein a time limit was imposed for considering the application for renewal of licence, is illegal. Further, the Supreme Court had taken into account under what circumstances the licence was granted to the original licensee, i.e., for upliftment of poor family. Therefore, prescribing a time limit for consideration of the renewal applications i.e., from 24.2.1999 to 6.10.2003, to those persons is unreasonable and such order is contrary to the observations made by the Supreme Court.
11. In the present case, the original licences were granted for upliftment of poor persons and to the family members who are in indigent condition and now it is not the case of the Government that those persons have become financially sound and due to demise of the original licensees they does not depend on kerosene business for their livelihood. It is also not the case of the Government that the legal heirs of the original licensees had any reasonable income through movable or immovable properties or through lending, leasing or by servicing or through any other source. Therefore, so long as they are not progressed financially, they are eligible for renewal as has been held by the Honourable Supreme Court and the Division Bench of this Court.
12. Considering the facts and circumstances of the present case, we are satisfied that the period prescribed in para 5 of the G.O.Ms.No.337 dated 1.11.2004 is unreasonable and liable to be quashed. Therefore, para 5 of the aforesaid G.O., is quashed accordingly.
13. Once the period prescribed in G.O.Ms.No.337 dated 1.11.2004 is considered to be unreasonable, the consequential circular issued by the second appellant dated 29.11.2004 prescribing such time limit, is also liable to be quashed.
14. For the aforesaid reasons, para 5 of G.O.Ms.No.337 dated 1.11.2004 and the consequential circular issued by the second appellant dated 29.11.2004 are hereby quashed and the writ appeals are disposed of with a direction to the appellants to consider the application of the present respondents and those who have not approached this court, for renewal of their licence de horsing para 5 of the G.O.Ms.No.337 dated 1.11.2004 within a period of twelve weeks from the date of receipt of a copy of this order. No costs.
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