{"id":17553,"date":"2002-07-26T00:00:00","date_gmt":"2002-07-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/c-saraswathi-vs-the-commissioner-on-26-july-2002"},"modified":"2018-06-10T06:38:26","modified_gmt":"2018-06-10T01:08:26","slug":"c-saraswathi-vs-the-commissioner-on-26-july-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/c-saraswathi-vs-the-commissioner-on-26-july-2002","title":{"rendered":"C. Saraswathi vs The Commissioner on 26 July, 2002"},"content":{"rendered":"
Madras High Court<\/div>\n
C. Saraswathi vs The Commissioner on 26 July, 2002<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDated: 26\/07\/2002\n\nCoram\n\nThe Hon'ble Mr. Justice P. SATHASIVAM\n\nWrit Petition No. 17933 of 1990 and Writ Petition No. 18793 of 1990\nand W.P.No. 1092, 1093 and 2668 of 2001\nand\nW.M.P.Nos. 28224, 29636\/90, 1684, 1685 and 3615\/2001\n\n\nW.P.No. 17933 of 1990\n\nC. Saraswathi.                     .....  Petitioner\n\n\n                            Vs.\n1. The Commissioner,\n   Civil Supplies Corporation, Madras-5.\n\n2. The District Collector,\n   VOC District.\n\n3. The District Supply Officer,\n   VOC District, Tuticorin.\n\n4. Arasan and Company,\n   Kovilpatti.\n\n5. The State of Tamil Nadu,\n   represented by its Secretary to\n   Governmment, Food and Co-operation\n   Department, Madras-9.\n   (R-5 impleaded as per order of Court\n   dated 23-11-92).                   .....  Respondents.<\/pre>\n
W.P.No. 18793 of 1990<\/p>\n
C. Saraswathi.\n<\/p>\n
                               .. Petitioner.\n<\/p>\n
                           Vs.\n<\/p>\n
1. The Indian Oil Corporation,
\n  represented by its Regional Manager,
\n  Nungambakkam High Court, Madras-34.\n<\/p>\n
2. The Oil Selection Board (South Zone),
\n   134, Nungambakkam High Road,
\n   Madras-34.\n<\/p>\n
3. The Commissioner of Civil Supplies
\n   and Consumer Protection, Chepauk,
\n   Madras-5.\n<\/p>\n
                                   .. Respondents.\n<\/p>\n
W.P.No. 1092 of 90<\/span><\/p>\n
T. Paulraj.\n<\/p>\n
                                   .. Petitioner.\n<\/p>\n
                         Vs.\n<\/p>\n
1. Indian Oil Corporation Ltd.,
\n   represented by the Regional Manager,
\n   Nungambakkam, Madras-34.\n<\/p>\n
2. The Oil Selection Board of
\n   Indian Oil Corporation Ltd.,
\n   South Zone, 134, Nungambakkam High Road,
\n   Madras-600 034.\n<\/p>\n
3. The Commissioner,
\n   Civil Supplies Corporation, Chepauk,
\n   Madras-600 005.\n<\/p>\n
                                    .. Respondents.\n<\/p>\n
W.P.No. 1093 of  1991
\nT. Paulraj.\n<\/p>\n
                                    .. Petitioner.\n<\/p>\n
                              Vs.\n<\/p>\n
1. The Commissioner,
\n   Civil Supplies Corporation, Madras-5.\n<\/p>\n
2. The District Collector,
\n   VOC District.\n<\/p>\n
3. The District Supply Officer,
\n   VOC District, Tuticorin.\n<\/p>\n
4. Arasan and Company,
\n   Kovilpatti.\n<\/p>\n
5. The State of Tamil Nadu,
\n   represented by its Secretary to
\n   Governmment, Food and Co-operation
\n   Department, Madras-9.\n<\/p>\n
   (R-5 impleaded as per order of Court
\n   dated 30-11-92).\n<\/p>\n
                                   .. Respondents.`<\/p>\n
W.P.No. 2668 of 2001
\nC. Saraswathi.\n<\/p>\n
                                    .. Petitioner.\n<\/p>\n
                          Vs.\n<\/p>\n
1. The Government of Tamil Nadu,
\n   represented by its Secretary to
\n   Government, Civil Supplies and
\n   Consumer Protection Department,
\n   Fort St. George, Chennai-9.\n<\/p>\n
2. The Commissioner of Civil Supplies
\n   and Consumer Protection Department,
\n   Chepauk, Chennai-5.\n<\/p>\n
3. The District Supply Officer,
\n   Tuticorin.\n<\/p>\n
                                    .. Respondents.\n<\/p>\n
Petition under Article 226 of the Constitution of India for issuance of  Writs
\nof Declaration and Mandamus as stated therein.\n<\/p>\n
!For Petitioner in W.P.Nos.           :     Mr.  D.  Peter Francis\n17933\/90, 18793\/90 and 2668 of 2001.\n\n\nMr.  V.  Natarajan for petitioner in W.P.Nos.\n1092 and 1093\/1990.\n\n^For Respondents            :   Mr.  S.  Kandaswamy, Special Govt., Pleader for\n                               R1 to R3 and R5 in W.P.17933\/90 and 1093\/91 for\n                               R3 in W.P.18793\/90, 1092\/91 and for R1 to R3 in\n                               W.P.2668\/01.\n\nMr.  N.  Ishtaq Ahamed for R-1 and R-2 in W.P.Nos.\n18793\/90 and 1092\/91.\n\n:COMMON ORDER\n\n\n<\/pre>\n
Since  challenge  in  all  these  writ petitions relate to the same Government
\nOrder, they are being disposed of by the  following  common  Order.    One  C.
\nSaraswathi has  filed W.P.No.  17933\/90 seeking to issue a writ of Declaration
\ndeclaring that the amendment to Tamil  Nadu  Kerosene  (Regulation  of  Trade)
\nOrder, 1973 in G.O.Ms.No.  134 Food and Cooperation, dated 26-2-1982, is ultra
\nvires  and  unconstitutional and consequently direct the respondents to supply
\nkerosene to her uninterruptedly as before.  The very same petitioner has  also
\nfiled W.P.No.    18793\/90  seeking  to  issue a writ of Mandamus directing the
\nrespondents (Indian Oil Corporation) and the Commissioner, Civil Supplies  and
\nConsumer  Protection,  Madras-5  to  recognise her as a dealer under the first
\nrespondent for the supply of kerosene for the Ottapidaram Taluk,  pursuant  to
\nthe licence  granted to the petitioner in Licence no.  24 TNV issued under the
\nTamil Nadu Kerosene (Regulation  of  Trade)  Order,  1973.    Similar  relief,
\nnamely,  writ  of  Declaration  and  Mandamus  has  been  prayed for by one T.
\nBaulraj in Writ Petition Nos.  1092  and  1093  of  1991.    C.    Saraswathi,
\npetitioner  in  the  first two writ petitions has filed another writ petition,
\nnamely, W.P.No.  2668\/2001 seeking to issue a writ of Declaration  to  declare
\nthat the  licence  granted  to  her  bearing  No.24\/TNV in D.Dis.  19003\/74 is
\ndeemed to have been renewed in  terms  of  the  Tamil  Nadu  Kerosene  Control
\n(Regulation  of  Trade) Order, 1973 and consequently direct the respondents to
\nrenew her licence in terms of Rule 4 (3) of the said Kerosene Control Order.\n<\/p>\n
2.  For convenience I shall refer the case of C.   Saraswathi,  petitioner  in
\nW.P.Nos.17933, 18793\/90  and  2668\/2001.   In 1973 Ottapidaram Taluk was newly
\nformed and as per the policy of  the  Government  each  Taluk  is  to  have  a
\nwholesaler  and  no  transport  of kerosene from one Taluk to another Taluk is
\npermitted.   The  petitioner  was  asked  to  open  a  wholesaler  point   for
\ndistribution.   Accordingly,  she  was  granted  licence  under the Tamil Nadu
\nKerosene (Regulation of Trade) Order, 1973 (hereinafter  referred  to  as  the
\n“Kerosene Control  Order”).    As  per  the definition “whosaler”, there is no
\ncondition in the wholesaler licence or under the provisions  of  the  Kerosene
\nControl  Order  that  in  order  to  be  a  wholesaler, a person should hold a
\ndealership agreement with the Indian Oil  Corporation.    The  petitioner  was
\ngranted with wholesaler  licence bearing No.  24 TNV.  The petitioner was also
\ngot licence for the import  of  petroleum  products  in  accordance  with  the
\nPetroleum Act,  1934.   She has been carrying on business and selling kerosene
\nto the retailers and other cooperative societies and Civil Supplies Department
\nas per the directions of the authorities.  When she was lifting  the  allotted
\nkerosene  through  the  4th  respondent  and  carrying on business without any
\ndifficulty on 31-10-81, the District Supply Officer passed an order in and  by
\nwhich  as  per the policy of the Government, unless a person gets a dealership
\nfrom the oil companies, the wholesaler will not  be  supplied  with  kerosene.
\nThe said order was challenged by her in Writ Petition No.  1476\/82 before this
\nCourt.   On the basis of the statement made by the Government Pleader that the
\nsaid condition will not be insisted, and after recording the same, this  Court
\ndismissed the  writ  petition.   Again on 30-11-82, she received a letter from
\nthe 4th respondent informing that from November, 1982  onwards  kerosene  will
\nnot  be  supplied to her since she did not have any direct dealership from the
\noil companies.  Challenging the  action  of  the  4th  respondent,  she  filed
\nW.P.No.  10562\/82.   Meanwhile the Government brought an amendment to Kerosene
\nControl Order and issued G.O.Ms.No.  134, Food and Cooperation  dated  26-2-82
\nwhereunder a  wholesaler  has been defined.  In view of the said amendment and
\nembargo on selling kerosene by one  wholesaler  to  another  wholesaler,  this
\nCourt dismissed the  writ petition.  To the same effect, Writ Appeal No.  1111
\nof 90 was also dismissed by this  Court.    In  the  said  circumstances,  the
\npetitioner  has filed these writ petitions questioning the impugned Government
\nOrder and seeking a direction to the Indian Oil Corporation to  recognize  her
\nas  a dealer and to declare that her licence is deemed to have been renewed in
\nterms of Kerosene Control Order.  Raising similar contentions, another  person
\nby name Baulraj has prayed for similar relief.\n<\/p>\n
3.   Though  initially  the  State  of  Tamil  Nadu  is  not  a party in these
\nproceedings, subsequently the petitioner C.    Saraswathi  has  impleaded  the
\nState  of  Tamil  Nadu  represented  by  Secretary  to  Government,  Food  and
\nCooperation Department as 5th respondent in W.P.  No.  17933 of  90.    Though
\nthe  Government and other respondents have filed a separate counter affidavit,
\nthe counter affidavit  of  the  District  Supply  Officer  is  exhaustive  and
\nrelevant.   Here  again,  as  stated  earlier,  I shall refer the stand of the
\nDistrict  Supply  Officer,  Chidambaranar  District,  Tuticorin   in   W.P.No.
\n17933\/90.  It  is  stated  that  C.  Saraswathi was granted kerosene wholesale
\nlicence No.24\/TNV in the year 1974 before bifurcation of the  District.    She
\nwas  getting  supply  of  kerosene  through  Arasan  and  Company,  Indian Oil
\nCorporation dealer, Koilpatti and supplying kerosene to  the  retailers  under
\nPublic  Distribution points as per the allotment orders of the District Supply
\nOfficer, in Ottapidaram Taluk.  Subsequently, Tamil Nadu Kerosene ( Regulation
\nof Trade) Order, 1973 was amended in G.O.Ms.No.  134,  Food  and  Co-operation
\nDepartment, dated  26-2-82.  The District Supply Officer, Tirunelveli issued a
\nnotice to her to show cause against the cancellation of her wholesale  licence
\nfor  kerosene  since  she  has  no  dealership  agreement  with any of the Oil
\nCompanies.  After disposal of her earlier writ petitions, including  the  last
\none namely W.P.No.10562\/82 dated 19-10-90, action was initiated to stop supply
\nof kerosene to the petitioner.  Again the petitioner approached this Court and
\nobtained an  order of injunction.  The fact that the petitioner is a wholesale
\nlicensee is not disputed.  The allotment of kerosene for every month is  based
\non the  policy  of  the  Government  of  India.  It is true that Oil Companies
\nsupply kerosene to their dealers who are having wholesale licences under Tamil
\nNadu Kerosene (ROT) Order, 1973.  These wholesalers pay the cost  of  kerosene
\nto the oil companies, received supply from the installation points and sell it
\nto the  authorized  dealers.    Certain  wholesale  licensees who had not been
\nappointed as dealers of oil companies were getting  supply  of  kerosene  from
\nwholesale  dealers  who  are dealers under oil companies before the amendment.
\nWith a view to prevent misuse of kerosene it was decided  not  to  permit  the
\nsale  of  kerosene  by  one wholesaler to another wholesaler and amendments in
\nG.O.Ms.No.  134 Food and Cooperation Department dated 26-2-82 were  issued  to
\nthe Tamil  Nadu  Kerosene  (ROT)  Order,  1973.    In accordance with the said
\namendments, no wholesale  dealer  can  sell  kerosene  to  another  wholesaler
\ndealer.   The amendment was given effect to prospectively from the date of the
\namendment.  The petitioner  cannot  insist  supply  from  another  wholesaler.
\nSince  the  matter  in  issue  has  also  been issued by this Court in W.P.No.
\n10562\/82 dated 19-10-90, the petitioner is not permitted to raise  once  again
\nthe same  points.   Further, the wholesale licence issued to the petitioner is
\nstill intact and no harm done by the respondents.  The Indian Oil  Corporation
\nitself  informed  the  petitioner that it will not supply to the petitioner as
\nshe was not a dealer of the Oil firm.  None of the fundamental rights  of  the
\npetitioner is  taken  away.    In  fact the petitioner has been issued a valid
\nlicence by the respondents to enable her to deal in kerosene.  If  the  Indian
\nOil  Company  refused  to supply kerosene directly or through any one of their
\ndealer as the petitioner was not  an  authorized  dealer  of  the  Indian  Oil
\nCompany,  inconsonance with their rules and regulations, the petitioner cannot
\nhave any grouse against  the  respondents.    Kerosene  belonged  to  the  oil
\ncompanies,  which  supply this products to this State through their authorized
\ndealers.  The respondents are concerned only with the proper  distribution  of
\nkerosene  by  these dealers to the retailers and consumers enforcing the Tamil
\nNadu Kerosene(RT)Order 1973 to  ensure  its  equitable  distribution  at  fair
\nprices.  With the valid licence on hand, she has to approach the oil companies
\nand obtain  dealership for the uninterrupted supply of kerosene for trade.  If
\na wholesaler is permitted to sell to another wholesaler, then the  cardholders
\nwill be  denied  their quota of kerosene to the extent of kerosene sold.  This
\nwill result in maldistribution of this product.  This cannot be allowed  under
\nEssential Commodities  Act,  195  5.   Similar averments have been made in the
\nother cases also.\n<\/p>\n
4.  In respect of prayer for  direction  to  the  Indian  Oil  Corporation  to
\nconsider  the application of the petitioners, Indian Oil Corporation has filed
\na counter affidavit stating that there is no statutory  legal  or  other  duty
\ncast on  them  to  appoint  the petitioner or any other person as dealer.  The
\npetitioner has no right under any statute or law or otherwise  to  compel  the
\nrespondent to  appoint  him  as  a  dealer.   The question of appointment of a
\ndealer for any particular area depends on a variety of factors such as  market
\npotential, economic viability and the number of existing dealers in that area.
\nIf there are already one or more dealers in a particular area, unless there is
\nscope  or  justification  for  appointment of a new dealer based on the market
\npotential or economic viability, the matter of appointment of a new\/additional
\ndealer has to be decided by the oil industry and should there be  a  need  for
\nsuch appointment the proposal would be put up to the Ministry of Petroleum for
\napproval.   On  getting  the  approval  from  the  Ministry,  a roster will be
\nprepared.  Thereafter, the oil company for which the dealer is to be appointed
\nwill release an advertisement calling for applications from the category under
\nwhich the dealer is to be appointed.  The applications will be scrutinized and
\neligible candidates will be interviewed by  the  Oil  Selection  Board.    The
\nselection will  be  based  on  the performance at the interview.  On the final
\nrecommendation of the Oil Selection Board, the Oil Company  will  appoint  the
\ndealer.   A  dealer  cannot  be  appointed  now  without  following  the above
\nprocedure.  In view of the above said procedure, the question  of  the  Indian
\nOil  Corporation  appointing  the petitioner as its dealer as suggested by the
\nwhole-saler does not arise now.   They  are  supplying  the  kerosene  to  the
\npetitioner based  on  the allocation given by the District Supply Officer.  If
\nfor any reason, the petitioner did not get any allocation from the authorities
\nconcerned, the respondent cannot in  any  way  be  responsible.    Indian  Oil
\nCorporation has filed similar counter affidavit in other writ petitions.\n<\/p>\n
5.   In the light of the above pleadings, I have heard the learned counsel for
\nthe petitioners as well as respondents.\n<\/p>\n
6.  Messrs.  D.  Peter Francis and V.   Natarajan,  learned  counsel  for  the
\npetitioners  contended  that  the  impugned  Government  Order is violative of
\nArticle 19 (1) (g) of the Constitution of India.   They  also  contended  that
\nthere is no rule that a wholesaler should be a dealer under oil companies.  In
\nany  event,  the amendment is only prospective and it cannot alter the licence
\nconditions of the petitioners.  According to them, inasmuch  as  the  impugned
\norder  was not gazetted in the Tamil Nadu Government Gazette, they cannot have
\nany force at all.  They further contended that in view of the  fact  that  the
\nGovernment  Orders  were  not  available  the respondents are not permitted to
\nenforce the same.  On the other hand, Mr.  S.    Kandaswamy,  learned  Special
\nGovernment  Pleader,  after taking me through the relevant provisions from the
\nEssential Commodities Act and Kerosene Control Order, would contend  that  the
\nimpugned  G.O.Ms.No.134  dated  26-2-82  was  duly published in the Tamil Nadu
\nGovernment Gazette and the copies were also available at  the  relevant  time.
\nHe also contended that the Government is well within their powers to amend the
\ndefinition  ”  wholesaler” in order to protect the interests of the consumers.
\nInasmuch as the Government have power to amend Control Orders in the interests
\nof the consumers and for proper  distribution  of  kerosene  to  all  eligible
\npersons,  the  action of the Government cannot be faulted with and there is no
\nmerit in any of the writ petitions; accordingly the  same  are  liable  to  be
\ndismissed.\n<\/p>\n
7.  I have carefully considered the rival submissions.\n<\/p>\n
8.  Among  the  other  contentions, I shall consider the contention of Mr.  D.
\nPeter Francis that the impugned Government Order namely G.O.Ms.No.   134  Food
\nand  Cooperation  dated  26-2-82 has not been published in the gazette and not
\navailable for public.    Though  both  the  petitioners  filed  separate  writ
\npetitions  questioning the amendment to the Tamil Nadu Kerosene (Regulation of
\nTrade) Order, 1973, pursuant to G.O.Ms.No.  134  Food  and  Cooperation  dated
\n26-2-82,  they  have not even included a copy of the said Government Order for
\nperusal of the Court.  Due to non-production of even a copy of the said Order,
\nI am unable to understand  how  a  challenge  has  been  made  in  these  writ
\npetitions.  On direction by this Court, learned Special Government Pleader has
\nproduced  a  copy  of the impugned Government Order which was published in the
\nGazette dated 26-2-1982 (Part III-Section 1 ( a)).  Apart from  producing  the
\ngazette  copy  of  the  impugned  Government Order, the learned Special Govt.,
\nPleader also contended that copies were  available  for  the  benefit  of  the
\npublic at  the relevant time.  In the light of the production of a copy of the
\nGovernment Order, along with the gazette notification which contains the  said
\norder, I am of the view that the first contention of Mr.  D.  Peter Francis as
\nto publication of the said Government Order and non availability to public has
\nno basis; accordingly I reject the same.\n<\/p>\n
9.   Coming  to  the  next  aspect  as to power of the Government, there is no
\ndispute that by virtue of Section 3 of the Essential  Commodities  Act,  1955,
\nthe  Tamil  Nadu Kerosene (Regulation of Trade) Order, 1973 came to be passed.
\nIn G.O.Ms.No.274, Food and Cooperation, dated 10-10-73 as seen from The  Tamil
\nNadu  Kerosene ( Regulation of Trade) Orders, 1973 it was ordered that whereas
\nthe State Government are of opinion that for maintaining supplies of  Kerosene
\nand  for  securing its equitable distribution and availability at fair prices,
\nit is necessary to provide for the licensing of kerosene.  Section  2  defines
\n“dealer, retailer,  wholesaler”  etc.    Un-amended  Clause  2  (  p)  defines
\n“wholesaler” as under:\n<\/p>\n
“Clause 2 (p) “Wholesaler” means a dealer who sells to other dealers and  bulk
\nconsumers  or other and includes any person or institution selling kerosene in
\nbulk exceeding 20 litres at a time.”\n<\/p>\n
By virtue of the impugned order, sub-clause (p) has been substituted as under:\n<\/p>\n
“Clause 2 (p) “Wholesaler” means a dealer who  sells  kerosene  to  registered
\nretailers  or  to  the  persons  who  are in possession of special order under
\nsub-clause (i) of clause 4 of Kerosene ( Restriction on Use) Order, 1966″.\n<\/p>\n
Clause 3 deals with licensing of wholesalers and Clause 4 refers to  issue  of
\nlicence, period  of licence and fee chargeable.  We are not concerned with the
\nother clauses.  It is not disputed that the petitioners were issued  wholesale
\nlicences in  Form  II under Tamil Nadu Kerosene Control Order.  The purpose of
\nissue of licence is to identify the wholesale dealers and to regulate  and  to
\ncontrol them as and when circumstances warrant.  The licence only mentions the
\nplace  of  business  and does not mention anything as entitlement quota and no
\nsupply is assured under the said licence.  In the counter affidavit of the 5th
\nrespondent,   it   is   stated   that   the   Commissioner,   Civil   Supplies
\nCorporation-first  respondent herein submitted a proposal to the Government to
\nthe effect that in the context of scarcity of kerosene it  is  considered  not
\ndesirable  to permit a wholesaler to sell kerosene to another wholesaler as it
\nbecomes very difficult to check the proper disposal of the stock.  It has also
\nbeen stated that the accounts of the wholesalers can  be  effectively  checked
\nand  the  misuse  of kerosene can be prevented only if the sale of kerosene by
\nthe wholesaler to another wholesaler is prohibited.  It has also been stressed
\nthat it is particularly necessary in the context of a difference in the  price
\nbetween  diesel and kerosene and on account of the lower price of kerosene the
\ntransport contractors are attempting to adulterate kerosene with diesel.   The
\nGovernment examined the proposal of the Commissioner, Civil Supplies carefully
\nand passed  the impugned order.  It is also explained that the purpose and aim
\nof the Government Order is to eliminate the persons who are virtually  playing
\nthe role of middle man.  In the light of the above discussion, I hold that the
\nGovernment  have  power to amend the Kerosene Control Order in order to supply
\nkerosene to the needy persons.\n<\/p>\n
10.  By referring to a decision of the Supreme Court in Chintamanrao v.  State
\nof M.P., reported in A.I.R.  1951 Supreme Court 118, Mr.   Peter  Francis  has
\nargued  that  the  present action imposes unreasonable restrictions, and that,
\ntherefore, it is violative of the freedom guaranteed under Article 19 (1)  (g)
\nof the  Constitution.    It is true that in that decision Their Lordships have
\narrived at a conclusion that the statute  which  arbitrarily  interferes  with
\nprivate  business  and  imposes  unreasonable  and  unnecessarily  restrictive
\nregulations upon lawful occupation is void and the same cannot  be  permitted.
\nAdmittedly,  the petitioner was granted licence in terms of the Control Order.
\nIn such a circumstance, there is no question of interference in his  avocation
\nas  claimed  so  long  as  he satisfies the licence conditions and the Control
\nOrder being enforced then and there.  The other decision referred  to  by  Mr.
\nPeter Francis is  in  the  case  of  Messrs.  Dwarka Prasad v.  State of U.P.,
\nreported in A.I.R.  1954 Supreme Court 224 wherein Their Lordships  have  held
\nthat  a  law  or order which confers arbitrary and uncontrolled power upon the
\nexecutive in the matter of regulating trade or business in normally  available
\ncommodities cannot  but be held to be unreasonable.  For the same reasons, the
\nsaid decision is also not helpful to the cases on hand.\n<\/p>\n
11.  It is relevant to note that the very same petitioner (C.  Saraswathi) had
\nalready filed a writ petition namely Writ Petition No.  10562  of  82  seeking
\nfor a direction  for  supply  of  kerosene  to  her.  J.  Kanakaraj, J., while
\nconsidering the amendment made to the Kerosene Control Order as  well  as  the
\ndefinition  to  the expression “whole-saler” as defined in clause 2 (p) of the
\nControl Order, in the absence of dealership from a oil company and also taking
\nnote of the fact that the respondents have not prevented the  petitioner  from
\ncarrying on her business, dismissed the said writ petition.  The learned Judge
\nhas  also  opined  that the petitioner herself has to be blamed for refusal to
\nobtain dealership from oil company.  In  the  very  same  order,  the  learned
\nJudge, while considering the definition “wholesaler” has also held that “…In
\nview  of the above amendments, I am clearly of the opinion that the petitioner
\ncannot seek to get supply from another wholesaler…” It is further seen  that
\nthe  allotment  of  kerosene  for  every  month  is based on the policy of the
\nGovernment of India and oil companies supply kerosene to their dealers who are
\nhaving wholesale licenses under the Tamil Nadu Kerosene Control  Order,  1973.
\nThese  wholesalers pay the cost of the kerosene to the oil companies, received
\nsupply from the installation points and sell it to the authorized dealers.  It
\nis further seen that certain wholesale licensees who had not been appointed as
\ndealers of oil companies  were  getting  supply  of  kerosene  from  wholesale
\ndealers who are dealers under oil companies before the amendment.  With a view
\nto  prevent  misuse  of  kerosene,  it  was  decided not to permit the sale of
\nkerosene by one wholesaler to another wholesaler and  the  impugned  amendment
\nwas issued  to  the  Kerosene  Control  Order.    In  accordance with the said
\namendment, no wholesale dealer can sell kerosene to another wholesale  dealer.
\nThe  fourth  respondent  -Arasan  and  Company  who was a dealer of Indian Oil
\nCorporation and from whom the petitioner  was  drawing  kerosene,  refused  to
\nsupply  kerosene  under  instructions  from  Indian  Oil  Corporation  as  the
\npetitioners were not dealers of that oil company.  As a matter  of  fact,  the
\nIndian  Oil  Corporation  itself  informs  the  petitioners that they will not
\nsupply to them as they were not dealers of oil firm.\n<\/p>\n
12.  I do not find any substance in the  contention  that  the  amendment  has
\ntaken away their  fundamental rights.  In fact, C.  Saraswathi has been issued
\nwith a valid licence by the respondents to enable her to deal in kerosene.  If
\nthe Indian Oil Company refused to supply kerosene directly or through any  one
\nof  their  dealer as the petitioner was not an authorised dealer of the Indian
\nOil Company, inconsonance with their rules  and  regulations,  the  petitioner
\ncannot have  any  grouse  against  the  respondents.   It is further seen that
\nkerosene belonged to the oil companies, which  supply  this  product  to  this
\nState through  their  authorized  dealers.    As rightly argued by the learned
\nSpecial Government Pleader, the respondents are concerned only with the proper
\ndistribution of kerosene by these  dealers  to  the  retailers  and  consumers
\nenforcing  the Kerosene Control Order and to ensure its equitable distribution
\nat fair prices.\n<\/p>\n
13.  The amendment contained in G.O.Ms.No.  134 Food  and  Co-operation  dated
\n26-2-82  banning  sale of kerosene by a wholesaler to another wholesaler was a
\nregulatory  measure  to  discipline  the  trade  and  to   eradicate   certain
\nmalpractices in the trade with a view to make easy availability of kerosene to
\nthe consumers.    The  very  object  of  the Essential Commodities Act and the
\nControl Orders issued thereunder,  is  to  ensure  equitable  distribution  of
\nessential commodities at fair prices in the interest of the public.  With this
\nend  in  view,  the  sale  of  kerosene  by one wholesaler to another has been
\nbanned.  It is further seen that each of the wholesaler is  allotted  kerosene
\nbased  on  the  number of family cards attached to the Fair Price shops, which
\nare tagged to  each  of  the  wholesaler,  based  on  actual  requirement  for
\nequitable distribution  of  kerosene.  If a wholesaler is permitted to sell to
\nanother wholesaler, then  the  cardholders  will  be  denied  their  quota  of
\nkerosene to  the extent of kerosene sold.  This will result in maldistribution
\nof this product.  This cannot be allowed under the Essential Commodities  Act,
\n1955.   I  am satisfied that such measures of regulation of trade in essential
\ncommodities are taken in the larger and specific interest of the consumers, in
\nfurtherance of the objects of Essential Commodities Act.  It  is  settled  law
\nthat the  liberty  of  an  individual to do as he pleases is not absolute.  It
\nmust yield to the common good.  Absolute or unrestricted individual rights  do
\nnot and  cannot  exist  in any modern State.  In such a circumstance, I reject
\nthe contra argument made by the learned counsel for the petitioners.\n<\/p>\n
14.  In Writ Petition No.  2668 of 2001, it is contended that  the  petitioner
\nhas made an application for renewal after due payment, but the licence was not
\nrenewed and  the  same  is  pending.   In the absence of any deeming provision
\nmerely because the petitioner has deposited the renewal fee  will  not  confer
\nany right.  In this regard, it is relevant to refer a decision of the Division
\nBench of this Court rendered in Writ Appeal No.  2046 of 2000 dated 19-02-2001
\n(C.  SARASWATHY v.    DISTRICT  SUPPLY  OFFICER AND OTHERS).  In para 7, Their
\nLordships have held as follows:\n<\/p>\n
“7….As facts culled out, licence was in existence in the year  1993  whereas
\naccording  to  the learned counsel, the appellant got licence in the year 1974
\nfor a period of three years and the same  was  not  extended  though  she  was
\npaying the  renewal  fees.    Lastly,  the  payment of renewal fee was made on
\n30-11-2000 but the licence was not renewed and the same is pending.    To  our
\nmind, merely depositing the renewal fee will not confer any right unless it is
\ngranted…”\n<\/p>\n
Accordingly,  it  is  clear  that  unless licence is renewed or granted by the
\ncompetent authority by way of an order,  merely  because  the  petitioner  has
\ndeposited the renewal fee does not confer any right on her.\n<\/p>\n
15.  As  observed by Mohan, J (as he then was) in Writ Petition Nos.  7029 and
\n7030 of 1980 dated 23-12-1980 (P.  MANICKAM v.    COLLECTOR  OF  SOUTH  ARCOT,
\nCUDDALORE  AND  ANOTHER),  the<\/a>re  is  no  fundamental  right  available to the
\npetitioner to draw any kerosene.  Only when such right is  infringed  and  the
\npetitioner  has  been  discriminated,  the  applicability  of  the doctrine of
\nequality would arise.\n<\/p>\n
16.  Regarding the direction to the Oil Company, in his counter affidavit, the
\nChief Retail Marketing Manager of Indian  Oil  Corporation  has  categorically
\nstated  that  there  is  no  statutory,  legal  or  other  duty  cast  on  the
\nrespondent-Indian Oil Corporation to appoint  the  petitioners  or  any  other
\nperson as dealers.  They ( petitioners) have no right under any statute or law
\nor otherwise  to  compel  them  to  appoint  them  as dealers.  In the counter
\naffidavit, they highlighted the procedure for grant  of  dealership.    It  is
\nstated  that  they have to satisfy certain requirements to be specified in the
\nadvertisement, if any, that may be issued in future by an Oil Company inviting
\napplication for appointment of dealers for  their  area.    They  should  also
\nbelong to the category under which the dealer is to be appointed, for example,
\nScheduled  Caste, Scheduled Tribes, Defence, Physically handicapped or Freedom
\nfighters or open.  If  the  applicant  does  not  belong  to  that  particular
\ncategory  from  which  application  is  called for, they he or she will not be
\neligible even to apply for the dealership.  It  is  further  stated  that  the
\nquestion  of  appointment  of  a  dealer  for any particular area depends on a
\nvariety of factors such as market potential, economic viability and the number
\nof existing dealers in that area.  It is further  stated  that  if  there  are
\nalready  one  or  more  dealers in a particular area, unless there is scope or
\njustification for appointment of a new dealer based on the market potential or
\neconomic viability, the matter of appointment of a new\/additional  dealer  has
\nto  be  decided  by  the  oil  industry  and  should  there be a need for such
\nappointment the proposal would be put up to  the  Ministry  of  Petroleum  for
\napproval.   On getting the approval from the Ministry roster will be prepared.
\nThe Oil Company for which the dealer  is  to  be  appointed  will  release  an
\nadvertisement  calling  for  applications  from  the  category under which the
\ndealer is to be appointed.  The applications will be scrutinized and  eligible
\ncandidates will be interviewed by the Oil Selection Board, constituted for the
\npurpose of  selection  of  dealers.    The  selection  will  be  based  on the
\nperformance at the  interview.    On  the  final  recommendation  of  the  Oil
\nSelection Board,  the Oil Company will appoint the dealer.  A dealer cannot be
\nappointed now without following the above procedure.  In  view  of  the  above
\nsaid  procedure,  there  cannot  be  any  direction  to  the  Oil  Company for
\nappointing the petitioners as dealers.  In other words,  it  is  for  them  to
\nsatisfy  and  fulfill the conditions stipulated therein and only on satisfying
\nall the conditions and if there is any need  the  Oil  Company  will  consider
\ntheir claim.\n<\/p>\n
17.   In  the  light of what is stated above, I do not find any merit in these
\nWrit Petitions; consequently  they  are  dismissed.    No  costs.    All   the
\nmiscellaneous petitions are closed.\n<\/p>\n
Index:- Yes                                         26-07-2002\nInternet:- Yes\nR.B.\nTo:-\n1.  The Commissioner,\nCivil Supplies Corporation, Madras-600 005.\n\n2.  The District Collector,\nVOC District.\n\n3.  The District Supply Officer,\nVOC District, Tuticorin.\n\n4.  The State of Tamil Nadu,\nrepresented by its Secretary to\nGovernmment, Food and Co-operation\nDepartment, Madras-600 009.\nP.  SATHASIVAM, J.\n\n\nCommon Order in\nW.P.Nos.17933, 18793\/90,\n1092,1093 and 2668\/2001\nand\nWMP Nos.28224, 29636\/90\n1684,1685 & 3615\/2001.\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Madras High Court C. Saraswathi vs The Commissioner on 26 July, 2002 IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 26\/07\/2002 Coram The Hon’ble Mr. Justice P. SATHASIVAM Writ Petition No. 17933 of 1990 and Writ Petition No. 18793 of 1990 and W.P.No. 1092, 1093 and 2668 of 2001 and W.M.P.Nos. 28224, 29636\/90, 1684, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-17553","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nC. 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