IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 20TH FEBRUARY 2009 / 1ST PHALGUNA 1930 WP(C).No. 3068 of 2009(M) ---------------------------------------- PETITIONER(S): ------------------------ 1. T.A. RADHA, MANAGING PARTNER, M/S. KRIPA TRADE LINKS, HPCL DEALERS, ALATHUR TALUK, PALAKKAD DISTRICT. 2. K. BABY, MANAGER, PROPRIETOR, IOC DEALER, COURT ROAD, ALATHUR TALUK, PALAKKAD DISTRICT. 3. K. RAJAN, MANAGER, M/S. K.C.P.K.C.V AND CO., HPCL DEALERS, CHUNGAM-1, MATHUR.P.O, ALATHUR TALUK, PALAKKAD DISTRICT. 4. K.S SHAHUL HAMEED, MANAGER, M/S. K.M.S & CO., HPC DEALER, COYALMANNAM, PALAKKAD DISTRICT. BY MR.N.N.SUGUNAPALAN, SENIOR ADVOCATE BY ADV.MR.S.SUJIN RESPONDENT(S): -------------------------- 1. THE TALUK SUPPLY OFFICER, PALAKKAD TALUK OFFICE, PALAKKAD. 2. THE TALUK SUPPLY OFFICER, ALATHUR TALUK OFFICE, PALAKKAD DISTRICT. Kss ..2/- ..2.... WPC.NO.3068/2009 M 3. THE DISTRICT SUPPLY OFFICER, PALAKKAD. 4. THE DIRECTOR OF CIVIL SUPPLIES DEPARTMENT, THIRUVANANTHAPURAM. 5. THE COMMISSIONER OF CIVIL SUPPLIES, OFFICE OF THE CIIVL SUPPLIES COMMISSIONERATE, THIRUVANANTHAPURAM. 6. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. R1 TO R6 BY ADDL.ADVOCATE GENERAL MR.RANJITHTHAMPAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/02/2009 ALONG WITH WPC NO. 3369 OF 2009 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) Nos. 3068, 3369, 3747, 3945, 3970, 4073, 4074, 4212, 4237, 4565 & 5203 of 2009 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 20th February, 2009. J U D G M E N T In all these writ petitions, common grievances are raised by the petitioners in the matter of discontinuance of an allowance called 'leakage allowance' hitherto being granted to wholesale kerosene dealers in the State, which issue arose on account of the re-fixation of commission payable to kerosene dealers as per Central Government orders. The immediate provocation for filing these writ petitions is Ext. P8 Fax message issued by the Civil Supplies Commissioner to the Civil Supplies Officers, wherein the Civil Supplies Commissioner informed the recipients of Ext. P8 that since, as per G.O(MS) No.17/08/FCS & CAD, the Government has stopped the 1% leakage allowance payable to wholesale dealers of kerosene, and therefore apart from the revised commission and transport charges, the wholesale dealers would not be given any other concession and the 1% leakage allowance is cancelled with immediate effect. Ext. P7 is the order referred to in Ext. P8. Ext. P7 does not refer to cancellation of any leakage allowance. Therefore, the petitioners have filed these writ petitions challenging Ext. P8 specifically on the ground that the Government Order referred to in Ext. P8 does not cancel the leakage allowance given to the petitioners. 2. With the help of a statement filed on behalf of the 5th respondent and a counter affidavit filed on behalf of the 6th respondent, the learned Additional Advocate General stoutly opposes the prayers in the writ petitions. According to the learned Additional Advocate General, when commission payable to the wholesale dealers was re-fixed in accordance with the orders of the Central Government, all other concessions given to the wholesale dealers have been W.P.C. No. 3068/2009 etc. -: 2 :- withdrawn and the same has been made abundantly clear in Ext. R6 (e). Therefore, according to the learned Additional Advocate General, there cannot be any doubt that the petitioners are not entitled to any leakage allowance. 3. I have considered the rival contentions in detail. 4. Prior to the revision of commission to the wholesale dealers of kerosene by the Government of India, either by Government Orders or by practice, which has been permitted by the Government, there were two types of leakage allowance. One was in monetary terms and the other related to quantity of kerosene to be accounted by the dealers for settling accounts. For the purpose of deciding the price for which the wholesale dealers are to sell kerosene to retail dealers and the commission payable to them, formerly 1% leakage allowance was also taken into account. Apart from that, the dealers were also allowed another leakage allowance in the form of concession in quantity in the sense that when 100 liters of kerosene are supplied to the dealers, while accounting for the same, they need account only for 99 liters. The fact that the practice of granting such a second leakage allowance was prevalent is abundantly clear from the documents produced by the Government themselves, particularly Ext. R6(d), by which the Director of Civil Supplies Corporation had requested the Secretary of the Government to clarify whether the second leakage allowance on quantity can be continued to be given to the dealers. Referring to Ext. R6(d), the Government has issued Ext. R6(e) wherein without making it specifically clear as to whether the second leakage allowance should be given to the dealers, the Government simply said in Ext. R6(e) that apart from what has been given by Ext. P7, no other allowance should be given. Then also we come back to the question as to whether by Ext. P7, the second leakage allowance has been W.P.C. No. 3068/2009 etc. -: 3 :- cancelled. Ext. P7 does not refer to stoppage of any leakage allowance in terms of quantity to be accounted. That being so, I am inclined to accept the contention of the petitioners that as on today, there is no Government Order which categorically cancels the 1% leakage allowance on stock and that Ext. P8 is not supported by Ext. P8. I am supported in this view by judgment dated 15-10-1998 in O.P.No. 8620/1993, which is produced as Ext. P2 in W.P(C) No. 4212/2009, which categorically accepted the entitlement of such dealers for the second leakage allowance. Once the entitlement of the second leakage allowance on quantity is accepted, the same cannot be stopped by an express order of the Government, which is certainly lacking in Ext. P7, relying on which alone Ext. P8 has been issued. 5. In the above circumstances, I am of opinion that as on today, there is no express or implied cancellation of the second leakage allowance by the Government. Accordingly, Ext. P8 is quashed. The Government is directed to take a final decision in the matter, after affording an opportunity of being heard to a representative of the association of the wholesale dealers as expeditiously as possible. Till such decision is taken, the dealers would be continued to be given the second leakage allowance as before. The writ petitions are disposed of as above. S. Siri Jagan, Judge. Tds/