IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17..7..2008 CORAM THE HONOURABLE MR. JUSTICE K. CHANDRU W.P. No. 13262 of 1999; W.P. Nos. 949 and 21435 to 21437 of 2000; W.P. No. 1588, 1816, 2043, 2618, 2657, 2750, 2892 to 2896, 3031, 3705, 3780, 3790, 4332, 4429, 4486, 4589, 4919, 4921, 5098, 5971, 8261, 8335 and 21212 of 2001; W.P. No. 2492 of 2002; and W.P. Nos. 5442 of 2004 and W.M.P. No. 1397 of 2000 in W.P. No. 949 of 2000, W.M.P. No. 11760 of 2001 in W.P. No. 8261 of 2001, W.M.P. No. 31359 of 2001 in W.P. No. 21212 of 2001 and W.P.M.P. No. 6324 of 2004 and W.V.M.P. No. 2540 of 2005 W.P. No. 13262 of 1999: 1. Sakthi Agencies A partnership Firm rep. by K. Nagarajan Wholesale Merchant Sangam Sholinghur Vellore District 2. C. Abdul Basu Sahib & Sons rep. by partner K.B. Suban Wholesaler, Kaveripakkam Vellore District 3. C. Jayaraman Proprietor Wholesale Merchant Panapakkam, Vellore District 4. V.K. Bansilal & Brothers Rep. by V.B. Jagannathalal Partnership Firm 387 Main Bazaar Vellore .. Petitioners https://hcservices.ecourts.gov.in/hcservices/ Tamil Nadu Petroleum Dealers Association, rep. by the President, Mr.A.R.Damodaran, Chennai. ..Petitioner in WP 949/2000 M/s.Radha Agencies, rep. by its Patner, S.Bakthavathsalu Reddy Vandavasi, Thiruvannamalai District. ..Petitioner in WP 21435/2000 M/s.Sardha Agencies rep. by its Partner, S.Bakthavathsalu Reddy, Valathi,Villupuram District ..Petitioner in WP 21436/2000 M/s. Dass Agencies, rep. by its Partner S.Bakthavathsalu Reddy Kanchipuram District ..Petitioner in WP 21437/2000 M/s.G.P.C.Agencies rep. by its Proprietor G.N.Dhinagar Kumar, Chennai-39 ..Petitioner in WP 1588/2001 R.Parthiban IOC Dealer, Kancheepuram ..Petitioner in WP 1816/2001 M/s.M.M.Agencies rep. by its Proprietrix C.Devaki, Chennai-112. ..Petitioner in WP 2043/2001 M/s.D.B.Murali Indian Oil Dealers Thirukalukundram ..Petitioner in WP 2618/2001 R.Neelakantan Chennai ..Petitioner in WP 2657/2001 1.Karuppan Chetty 2.S.K.Ariyappa Chettiar S.K.O.Dealers, Salem. ..Petitioner in WP 2750/2001 https://hcservices.ecourts.gov.in/hcservices/ M/s.Balaji Agencies rep.by Power Agent K.Ponnuvel, No.29, Mandy Street, Alandur, Chennai ..Petitioner in WP 2892/2001 M/s. Ganesh Oil Company rep. by Partner R.Krishnamurthy Chennai 88 ..Petitioner in WP 2893/2001 Kamatchi Sahayam Agencies rep. by its Partner D.Balakrishnan, Chennai ..Petitioner in WP 2894/2001 K.R.Pachaiyappan Madras ..Petitioner in WP 2895/2001 M/s. Prabha Agencies rep. by its Partner Kurucila Cherian Chennai-15. ..Petitioner in WP 2896/2001 Sri Ayyanar Oil Company rep. by its Partner P.B.Aiyan Raj Thiruninravoor, Tiruvallur District ..Petitioner in WP 3031/2001 A.M.Srinivasan Indian Oil Kerosene Dealer, Gummidipundi ..Petitioner in WP 3705/2001 P.Jagadeesan Pooneri, Thiruvallur District ..Petitioner in WP 3780/2001 M/s. P.Gangadhara Iyer & co. by its Proprietor Mr.P.A.Sriraman, Periyapalayam, Tiruvallur District ..Petitioner in WP 3790/2001 M/s.Bhavani Agencies, Proprietor Niranjan rep. by Power Agent T.R.Hameed Sultan, Chennai-34. ..Petitioner in WP 4332/2001 https://hcservices.ecourts.gov.in/hcservices/ M/s. G.S.Annamalai Mudaliar & Co., by its Proprietor Meenakshisundaram, Tiruvallore District. ..Petitioner in WP 4429/2001 V.Kamaladevi Thiruvannamalai ..Petitioner in WP 4486/2001 1.K.P.Ramaish Chettiar & Sons Partnership firm rep.by its Partner R.Thiyagarajan Kallakurichi, Villupuram District 2.C.Ganesan, Indian Oil Dealer, Arakkonam, North Arcot District. 3.Shobha Agencies rep. by its Partner Ashok Kumar, Gudiyatham, N.A.District. ..Petitioner in WP 4589/2001 The Tiruvannamalai District Consumers Co.op.Whole sale stores Ltd., Tioruvannamalai rep. by its Secretary, P.Ramamurthy ..Petitioner in WP 4919/2001 1.M/s.Vijayalakshmi Traders rep. by its Managing Partner T.Ganesh, Thoraiyur 2.M/s.Vijayalakshmi Traders rep. by its Managing Partner T.Ganesh, Perambalur. 3.Thukkaram Agencies rep. by its Partner T.Lakshmi Narasimhan, Manapparai, Trichy District. 4.Thukkaram Agencies rep. by its Partner T.Lakshmi Narasimhan, Kulithalai,Karur District. https://hcservices.ecourts.gov.in/hcservices/ 5.M/s.V.E.Rathina Sabapathy Mudaliar, rep. by its Proprietor Rengaraj Sannanallur, Nagapattinam District. 6.M/s. U.E.Rathinasabapathi Mudaliar, rep. by Krishnaraj, Thiruvarur. 7.M/s.Sundari Agencies rep. by Parter V.Sattanathan, Sirkali,Nagapattinam District. 8.M/s. Shanmugam & Co., rep. by Partner V.Sattanathan, Sirkali, Nagapattinam. 9.M/s. A.M.Ahamed & co., rep. by its partner Sirkali, Nagapattinam District. 10.K.S.Arunachala Aiyar & Sons rep. by its Managing Partner Arun Ramadas, Mayiladuthurai, Nagapattinam District. ..Petitioner in WP 4921/2001 M/s. Sri Balaji Agencies rep. by its Proprietor P.Baskar, Chennai ..Petitioner in WP 5098/2001 M/s.N.Srinivasa Reddiar & Sons by its Proprietor N.Subramania Reddy Tiruvallur District. ..Petitioner in WP 5971/2001 M/s. G.Ramasamy Naidu Son rep. by its Proprietor G.R.Narayanasamy Trichy ..Petitioner in WP 8261/2001 Tamil Nadu Petroleum Dealers Association rep. by its Honourary Secretary M.Kannan, Chennai ..Petitioner in WP 8335/2001 M/s. Murugan Traders rep. by its Partner J.Senthilraj Thathiyengarpettai, Trichy District ..Petitioner in WP 21212/2001 https://hcservices.ecourts.gov.in/hcservices/ K.S.Markandan & Sons rep. by its Partner K.M.Viswanath, IOC Dealer Avadi. ..Petitioner in WP 2492/2002 M/s. Murugan Tranders rep. by its Partner J.Senthiraj, IOC Dealer Trichy ..Petitioner in WP 5442/2004 Vs. 1. The Commissioner of Civil Supplies and Consumer Protection Chepauk Chennai 2. The State Level Co-ordinator Indian Oil Bhavan Nungambakkam High Road Chennai – 34 ..ISt and 2nd respondents in W.P.13262/99 and W.P.2750/01 3. The District Supply Officer Vellore .. 3rd Respondent in W.P.13262/99 The District Supply Officer Salem .. 3rd Respondent in W.P.2750/01 The Government of Tamil Nadu, rep. by its Secretary to Government, Food, Civil Supplies & Consumer Protection Department, Fort St.George, Chennai-9. The Government of Tamil Nadu, rep. by The Special commissioner and Commissioner of Civil Supplies & Consumer Protection, Chepauk, Chennai - 5. https://hcservices.ecourts.gov.in/hcservices/ The Union of India, rep. by its Secretary, Ministry of Petroleum & Natural Gas, Shastri Bhavan, New Delhi. The State Level Co-Ordinator, Indian Oil Corporation, Indian oil Bhavan, Nungambakkam High Road, Chennai - 34. ..Respondents 1 to 4 in WP.949/2000 1.The Government of Tamil Nadu, rep. by its Secretary to Government, Co-Operation, Food and Consumer Protection Department, Fort St.George, Chennai-9. 2. The Commissioner of Civil Supplies and Consumer Protection, Chepauk, Chennai - 05. 3. The State Leval Co-Ordinator, Indian Oil Bhavan, Nungambakkam, Chennai - 34. ..1 to 3 Respondents in WP.21435 to 21437/2000, 1588/01, 1816/01, 2043/01, 2618/01, 2657/01, 2892 to 2896/01, 3031/01, 3705/01, 3780/01, 3790/01, 4332/01, 4429/01, 4486/01, 4919/01, 4921/01, 5098/01, 5971/01, 8261/01, 21212/01, 2492/02 & 5442/04. 4.The District Supply Officer, Thiruvannamalai, Thiruvannamalai District. ..4th Respondent in WP.21435 to 21437/2000 4486/01, 4919/01 5. The Union Government of India, rep. by its Secretary to Government, Ministry of Petroleum and Natural Gas, New Delhi. 5th Respondents in WP.21435 to 21437/2000 (R5 impleaded as per order of Court dated 08.09.2003 in WPMP.34714, 34716, 34719/01 by PSJ) https://hcservices.ecourts.gov.in/hcservices/ The Chief Regional Manager, Hindustan Petroleum Corporation Ltd., Thalamuthu Natarajan Maligai, Gandhi Irwin Road, Chennai - 8 ..4th Respondent in WP.1588/01,2043/01, 2657/01, 5098/01 The District Supply Officer, Kancheepuram District. ..4th Respondent in WP.1816/01, 2618/01, WP.2892, 2893/01. The District Supply Officer, Chennai. ..4th Respondent in WP.2894, 2895, 2896/01 The District Supply Officer, Thiruvallur District. ..4th Respondent in WP.3031 3705, 3780, 3790, 4429, 5971/01, 2492/02 The Assistant Commissioner of Civil Supplies & Consumer Protection, T.Nagar, Chennai. ..4th Respondent in WP.4332/01 The Union of India, rep. by its Secretary, Ministry of petroleum and Natural Gas, New Delhi. ..5th Respondent in WP.1816/01, 2618/01, 3780/01, 3790/01 (R5 impleaded as per order of (suo motu) dated 18.12.2003 (WP.No.1816/01, 2618/01) dated 24.12.2003 (WP.No.3780/01, 3790/01. The District Supply Officer, Ariyalur. ..5th Respondent in WP.8261/01 The Senior Depot Manager, Indian Oil Corporation Ltd., Trichy Depot, Good Shed Road, Tricbirapalli. ..6th Respondent in WP.21212/01 & 7th Respondent in WP.5442/04 The Depot Manager, Hindustan Petroleum Corporation, Grand Anaicut Road, Devadana Village, Trichy. ..6th Respondent in WP.8261/01 https://hcservices.ecourts.gov.in/hcservices/ The Commissioner of Civil Supplies and Consumer Protection, Chepauk, Chennai - 5. The Chief Divisional Manager, I.O.C, 739, Anna Salai, Chennai - 2. The District Supply Officer, Villupuram, The District Supply Officer, Vellore. The Government of India, Ministry of Petroleum and Natural Gas, rep. by its Deputy Secretary to Government at New Delhi. The Government of Tamil Nadu, rep. by its Secretary to Government, Food and Co-Operation and Consumer Protection Department, Fort St.George, Chennai-9. ..Respondents in WP.4589/01 (R5 & R6 - impleaded as per order of this Court dated 22.08.2003 in WPMP.No.34841/01) 1. The Government of Tamil Nadu, rep. by its Secretary, Co-Operation, Food and Consumer Protection Department, Chennai. 2. The Special Commissioner and Commissioner of Civil Supplies and Consumer Protection Department, Ezhilagam, Chennai - 5. ..Respondents in WP.8335/01 The District Supply Officer, Tiruchirapalli, Tiruchirapalli District. ..4th Respondent in WP.8261/01, 21212/01, 5442/04, & 4921/01 The District Supply Officer, Perambalur, Peramblur District. ..5th Respondent in WP.21212/01 & 5442/04 & 4921/01 https://hcservices.ecourts.gov.in/hcservices/ The District Supply Officer, Nagapattinam, Nagapattinam District. The District Supply Officer, Thiruvarur, Thiruvarur District. The District Supply Officer, Karur, Karur District. The State Level Coordinator (HPC) Thalamuthu Natarajan Building, Chennai. ..Respondents 6 to 9 in WP.4921/01 The Terminal Manager (IOC) Korukkupet, Chennai. ..6th Respondent in WP.5442/04 & ..10th Respondent in WP.4921/01 The Depot Manager, Indian Oil Corporation, Goods Shed Road, Trichy. ..11th Respondent in WP.4921/01 & ..7th Respondent in WP.5442/04 The Terminal Manager (HPC) Thondiyarpet, Chennai. ..7th Respondent in WP.8261/01 & ..12th Respondent in WP.4921/01 The Union of India, rep. by its Secretary, Ministry of Petroleum & Natural Gas, Shastri Bhavan, New Delhi. ..13the Respondent in WP.4921/01 (R13 impleaded as per order of this Court dated 16.09.2003 in WPMP.No.35246/01) Petition filed for issuance of writ of Certiorarified Mandamus calling for the records of the proceedings of the respondents herein, viz., Rc. No. K. 4/8100/99 dated 10.5.1999 on the file of the first respondent and in Na. Ka. J. 1/31246/99 dated 09.6.1999 on the file of the third respondent and quash the same in so far as with-holding of the commission of Rs.30/- per KL of return on capital equipment is concerned and consequently a Mandamus forbearing the respondents from in any way interfering with uniform payment of commission at Rs. 101/- per KL so far as the petitioners herein are concerned. https://hcservices.ecourts.gov.in/hcservices/ to issue a writ of Mandamus to direct the respondents 1 and 2 to fix and pay the commission of the wholesalers at Rs.126/- per KL with regard to the wholesalers having underground tank facilities and Rs.83/- per KL with regard to the wholesalers having barrel storage facilities in accordance with the order of Third Respondent in Letter No.P.20028/PP dated 6.11.1997 (W.P.949/00) Issue a Writ of Certiorarified Mandamus calling for the records relating to Letter No.P.20028/1/95-PP dated 6.11.97 and the subsequent order bearing RC.No.K4/8100/99 dated 10.5.99 and the connected order bearing letter No.272 dated 25.11.00 on the file of the fifth, second and first respondents respectively and to quash the same in so far as it relates to the deduction of commission under the heading" Return on capital equipment" and to direct the respondents to pay the petitioner the commission on par with the whole sale dealers of Tanker storage (Prayer amended as per order of court dated 8.9.03 in WPMP.34715,34718 & 34720/01 by PSJ) (WP.21435 to 21437/00) to issue a writ of Certiorarified Mandamus calling for the records relating to the order bearing R.C.No.K4/8100/99 dated 10.5.99 and the connected order bearing letter No.272 dated 25.11.00 on the file of the second and first respondent respectively and to quash the same in so far as it relates to the deduction of commission of Rs.30/- per KL as return of capital equipment is concerned and to direct the respondents to pay the petitioner the commission on par with the wholesale Dealers of Taker storage (W.P.1588/2001) W.P.1816/07 w.P.2043/2001, W.P.2618/01, 2657/01, 2892 to 2896/01, 3031/01, 3705/01, 3780/01, 3790/01, 4332/01, 4429/01, 4486/01 4919/01, 5098/01, 5971/01, 8261/01, 21212/01, 2492/02 & 5442/04) to issue a writ of certiorarified Mandamus call for the records of the proceedings of the respondents herein in RC.K4/8100/99 dated 10.5.99 of the first respondent and quash the same in so far as withholding of the commission of Rs.30/- per KL on return on capital equipment is concerned and consequently for bearing the respondents from in any way interfering with uniform payment of commission at Rs.101/- per KL (W.P.2750/01) to issue a writ of certiorarified Mandamus calling for the records of the proceedings of the first respondent in RC.No.K4/8100/99 dated 10.5.99 and that of the 5th respondent in P.No.20028/2/2000/PP dated 27.10.2000 as well as that of the 6th respondent in letter No.(Permanent) 272 dated 25.11.2000 and quash the same in so far as it is against the petitioner are concerned in with holding the commission of return of capital equipments is concerned and consequently for bearing the respondents from in any https://hcservices.ecourts.gov.in/hcservices/ way reducing the commission payable to form 13 licence holders (W.P.4589/01) prayer amended as per order of this court dated 22.8.03 in WPMP.34842/01 to issue a writ of Certiorarified Mandamus calling for the records relating to the orders of the 13th respondent in P.20028/1/95-PP dated 6.11.1997 and in P.20028/2/2000-PP dated 27.10.2000 and the consequential order of the 2nd respondent in RC.No.K.4/8100/99 dated 10.5.99 and the order of the Ist respondent in letter No.272 dated 25.11.2000 and to quash the same in so far as it relating to deduction of commission on return on capital equipment is concerned and direct the Ist & 2nd respondents to pay the petitioner's commission on par with the whole sale dealers of taken storage in so far as the petitioner are concerned in all other aspects as per the 13th respondent's order in P.20028/1/95-PP dated 6.11.97 & P.20028/2/2000-PP dated 27.10.2000 (WP.4921/01) (prayer amended as per order of this court dated 16.9.03 in WPMP.35247/01) to issue a writ of certiorari calling for the records of the Ist respondent in G.O.Ms.No.96, co-operation, food and consumer protection Department, dated 24.5.2000 and circular of the 2nd respondent in RC.No.K4/8887/99 dated 17.3.2001 and quash the same in So far as they relates to the members of the petitioner Association are concerned (WP.8335/01) For Petitioners in : Mr. D. Peter Francis W.P. 4589/01, 2750/01, 13262/99, 949/00 For Petitioners in : Mr. M. Jawahar W.P. Nos. 1588, 2043, 2657 & 8335/01 For Petitioners in : Mr. P. Rajamanickam W.P. Nos. 1816, 2618, 2892 – 2896, 3031 & 3705/01 & 2492/02 For Petitioners in : Mr. V. Balakrishnan W.P. Nos. 3780, 3790, 4332, 4429 & 5971/01 For Petitioners in : Mr. R. Ravi W.P. No. 4486/01 For Petitioners in : Mr. L. Chandrakumar W.P. No. 4919/01 https://hcservices.ecourts.gov.in/hcservices/ For Petitioners in : Mr. M. Baskar W.P. No. 4921, 8261 & 21212/01 For Petitioners in : Mr. M. Devendran W.P. No. 5098/01 For Petitioners in : Mr. R. Babu W.P. No. 5442/04 For Petitioners in : Mr. G.K. Selvarajan W.P. Nos. 21435 - 21437/2000 For State : Mrs. C.K. Vishnupriya A.G.P. (w) For Union of India : Mr.P. Wilson, Asst Solicitor General For Indian Oil Corporation : Mr.P.N. Radhakrishnan For Hindustan Petroleum Corporation: Mr.O.R. Santhana Krishnan COMMON ORDER These petitions were listed before this Court on being specially ordered by the Honourable Chief Justice vide his order dated 11.6.2008 and posted for final disposal. 2. In this batch of writ petitions, the petitioners were all licencees to store Petroleum otherwise than in bulk quantity not exceeding 25,000 Litres. 3. It is stated by the petitioners that they have been doing the business of getting the kerosene in bulk in terms of the licence conditions and storing the same in barrels. For the purpose of supplying the same to the retailers, they take delivery of kerosene from the point of supply and keep it stored in barrels in the areas notified to them. According to them, they have invested substantial amounts in the purchase of drums for storing kerosene and the life span of such barrels is very limited and periodically they will have to replace the barrels from time to time. 4. The commission for selling kerosene is fixed by the Central Government and the issue relating to the restriction of use and fixation of ceiling of price of kerosene is controlled by the Kerosene (Restriction on use and Fixation of Ceiling Price) Order, https://hcservices.ecourts.gov.in/hcservices/ 1993 framed under Section 3 of the Essential Commodities Act, 1955 [for short, 'E.C. Act']. Under Section 4 of the Act, restrictions have been made on the dealers storing the supply of kerosene in any other place other than the place of storage and also selling it with the price fixed by the Central Government or the Government Oil Company. 5. It is stated by the petitioners that on the demand made by the Tamil Nadu Petroleum Merchants' Association, the Central Government increased the commission for 1 KL of kerosene at Rs.126/-. Even though the Central Government had increased the commission rate, it is their grievance that the State Government had not implemented the same. 6. After several representations made by the petitioners, the first respondent State Government, by proceedings dated 10.5.1999, fixed the commission at Rs.101/- per KL. It was stated that the State Level Co-ordinator had communicated to the Commissioner for Civil Supplies, the Ex-depot rates of Superior Kerosene Oil effective from 28.02.1999 and consequent on the revision of Excise Duty, the ex-depot rates became effective from 20.4.1999 consequent on the revision in Railway freight rates. A separate communication was also given with reference to the delivery rates for the hilly areas. Therefore, the Commissioner for Civil Supplies informed all the District Collectors the revision of margin available to wholesale dealers, which is as follows:- For Dealers having Tanker storage (From XIII) For Dealers having barrel storage 1 Return on Capital investment Rs. 16.00 Per KL Rs. 16.00 Per KL 2 Return on Capital Equipment Rs. 30.00 Per KL NIL 3 Leakage Allowance Rs. 5.50 Per KL Rs. 5.50 Per KL 4 Operating expenses Rs. 49.50 Per KL Rs. 49.50 Per KL TOTAL Rs. 101.00 Per KL Rs. 71.00 Per KL 7. It was specifically mentioned therein that the margin of Return on Capital Equipment of Rs.30/- per KL is not allowed for the dealers like the petitioners having barrel storage having licence in Form XI and they will have a total margin of Rs.71/- per KL only. https://hcservices.ecourts.gov.in/hcservices/ 8. It was stated that in order to avoid dual pricing of Kerosene at consumer level, the total margin allowed for the wholesale dealers was taken as Rs. 101/- uniformly for all the dealers and for all the wholesale centres. Therefore, it was directed that the dealers having licence (Form XI) having barrel storage should remit to the Government account at the rate of Rs. 30/- per KL. The District Supply Officers were directed to collect the amount from the wholesale dealers having barrel storage in advance and were directed to remit it into the Government account. It was also stated that because of this, there cannot be any increase in the retail pricing. Pursuant to this order, consequential proceedings were issued by the District Supply Officers directing the wholesale dealers to collect Rs.30/- per KL (1000 Litres) of Kerosene. It is against this communication, the present writ petitions have been filed. 9. Initially, the petitioners have not made Union of India as a party and subsequently, on an application being taken out, the Union of India was also impleaded as a party to some of the writ petitions. 10. It was stated by the petitioners that the impugned communication charging Rs.30/- per KL on Return of Capital Equipment to the wholesale dealers having tanker storage with licence under Form 13 and denying the same to the petitioners having barrel storage under form 11, was discriminatory and violative of Articles 14 and 19(1)(g) of the Constitution of India. 11. It is now stated by them that licences were issued only under the Kerosene Regulation Order and in both the cases, the licences were issued under Rule 3 and the conditions of licences are one and the same. It is also stated that the trade practice for the last three decades was uniform but allowing the tanker storage dealers to retain Rs.30/- and denying the same to the dealers in to barrel storage was unjustified and the petitioners were not heard on the same. It is also stated that both the licencees are equal and they cannot be treated unequally in the matter of retention of Return on Capital Equipment. 12. The writ petitions have been admitted and the petitioners are also enjoying interim order from paying back the amounts collected in terms of the impugned order. 13. On behalf of the State Government, a detailed counter affidavit dated 22.02.2002 has been filed in W.P. No. 8335 of 2001. It was stated by the State Government that out of the 519 wholesale dealers in Kerosene operating in the State, 343 dealers are having https://hcservices.ecourts.gov.in/hcservices/ underground storage with dispensing facility and 176 dealers are operating with the conventional barrel system. It was also stated that it is open to the petitioners to modernise the storage facility and they availed the Return on Capital Equipment. The tanker dealers are also taking the Kerosene from the supply point to the storage point. The petitioners allegation of loss of Kerosene through evaporation because of the temperature variation was denied by the State. It was also claimed that the alleged loss claimed by the dealers may not be correct because the Oil Companies supplied the products to wholesale dealers according to the dip measurement and, therefore, the question of loss at the filling point may not arise. Even the loss while filling the barrels are also minimal and the downstream barrel leakage, if any, occurrs will not affect the wholesale dealers. 14. On behalf of the second respondent, a counter affidavit dated 23.8.2000 was filed by the Indian Oil Corporation Limited. They had stated that the use of tankers require higher investment and in the matter of fixation of Return on Capital Equipment, Tamil Nadu Petroleum Dealers' Association was also heard by the State Government and after hearing their views only, the amounts were fixed. Therefore, it is not for them to state that the fixation has been done without opportunity given to them. The dealers of barrel storage, having collected the excess amount from the consumers, are bound to pay back the same to the State Government as otherwise, it would amount to unjust enrichment. 15. Counter affidavits have been filed by the Hindustan Petroleum Corporation Ltd. in W.P. Nos. 1588 and 8261 of 2001 refuting the allegations made by the petitioners. It is stated by them that the cost of establishing an underground tanker storage facility with dispensing facility will cost around Rs. 4.5 lakhs whereas the dealers storing kerosene in barrels will have to spend only around Rs.50,000/- for buying 75 barrels for storage of 15 KL Kerosene. It was also stated that the wear and tear and replacing all the barrels cannot be a capital expenditure and the argument that the Form XI licencees are in no way less equal to Form XIII licencees was also denied. It was also stated by them that all of them do not belong to the same class and allowing Return on Capital Equipment for the tanker storage was based upon a reasonable classification. Therefore, the allegation of violation of Articles 14 and 19(1)(g) of the Constitution does not arise. It was also stated that it is open to the petitioners to establish an underground tanker storage and dispensing facilities and claim the benefit. 16. On behalf of the State Government and the Commissioner for Civil Supplies, another counter affidavit dated 10.01.2005 was also filed in W.P. No. 5442 of 2004. It was stated by the State https://hcservices.ecourts.gov.in/hcservices/ Government that while the expenditure involved in erection of bulk storage facility involves large space and cost and periodical maintenance to prevent damage and leakage, in barrel storage, the cost involved is much minimal. Large capital investment is required for tanker storage whereas the same is not true in respect of the barrel storage. While the retail price will have to be fixed at the uniform rate by allowing Return on Capital Equipment to different class of persons, at the maximum, the margin of profit for the petitioners may come down. But, in no way, it will make the petitioners to go out of business. Therefore, the argument based upon Article 19(1)(g) of the Constitution cannot be sustained. 17. Even with reference to Article 14 of the Constitution, merely because both the wholesale dealers are dealing in Kerosene, they do not become equals. The Return on Capital Equipment is based upon the expenditure involved in setting up the facility. 18. On behalf of the Union of India, Mr. P. Wilson, learned Assistant Solicitor General submitted that by communication dated 23.5.2008, the Government of India, Ministry of Petroleum and Natural Gas has issued the following circular, which is as follows:- "I am directed to refer to the above subject to say that the existing rates of Dealers'