W.P.No.168 of 2008 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.168 OF 2008 Jamner Taluka Rockel Hawkers Union, Taluka Jamner, Dist.Jalgaon through its President, Shaikh Nazim s/o Shaikh Wazir, Age 41 years, Occu.Hawker, R/o Mahavir Marg, Near Jamamasjid, Taluka Jamner, Dist.Jalgaon ..PETITIONER VERSUS State of Maharashtra through Principal Secretary, Food, Civil Supplies & Consumer Protection Department, Mantralaya, Mumbai 32 and ors. ..RESPONDENTS Mr P.R.Patil, Advocate for petitioner Mr K.B.Choudhari, Assistant Government Pleader for respondents 1 to 4 Mr Alok Sharma, Assistant Solicitor General for respondent No.5 CORAM : SMT. NISHITA MHATRE & S.S. SHINDE, JJ. DATE : 13th April 2011 PER COURT 1. The present petition has been filed by a Hawkers' union, the members of which sell kerosene which is distributed by the State for consumers. The case of the petitioner is that its members are not being allotted the quota specified by the State for each of its members and, therefore, they are running at a loss. According to the petitioner the members are given a commission on W.P.No.168 of 2008 2 the basis of the sale of kerosene. The petitioner contends that the reduction in the quota of kerosene for each of the members has resulted in a loss for them. 2. There is nothing on record to indicate that the members of the petitioner who are vendors had been promised that they will be given a specific quota of kerosene for all times to come. Obviously, the kerosene quota will be allotted depending on various factors, such as the number of consumers in a particular region, the amount of kerosene allocated to the State by the Central Government etc. 3. The State has filed an affidavit indicating that although the quota of kerosene for the Jalgaon district has been reduced, it is evenly distributed amongst all the talukas of Jalgaon and the consumers or the card holders do not suffer in any manner because of the unavailability of kerosene. The learned Assistant Government Pleader Mr Choudhari has also submitted that it is the policy of the Government to reduce the quota depending on the number of LPG connections available to the consumers. This policy which has been formulated in 2003, stipulates that the more the number of LPG connections for the consumers, the lesser the quantity of kerosene made available for that region. The main reason for the Government to formulate this policy is that persons, who are below poverty line should be able to avail of the fuel to meet their daily requirements. W.P.No.168 of 2008 3 4. We have also perused the copy of the affidavit of the Under Secretary, Ministry of Petroleum and Natural Gas in which he has stated that the kerosene allotted to the State of Maharashtra has not been reduced. However, in order to ensure that the policy of the Government regarding the distribution of kerosene under the public distribution system is implemented effectively, the quota for hawkers was reduced, depending on the number of LPG connections in the area. He has also mentioned that while the initial allotment for the year 2004-2005 was based on the criteria adopted earlier, additional allocations were made during the year to meet urgent and emergent demand. Allocations for the years 2005-2006 to 2007-2008 have been maintained at the level of 2004-2005 including the additional allocations made during that year. 5. The learned Counsel for the petitioner has submitted that the reduction of the quota of kerosene for the members of the petitioner would result in the consumers being affected. On considering the averments in the affidavits filed on behalf of the the State and the Central Government we are satisfied that there would be no such consequence. The petition has not been filed for the altruistic object of securing sufficient kerosene for the consumers but to ensure that the members of petitioner do not incur losses because their quotas are reduced. W.P.No.168 of 2008 4 6. Reliance is placed on the judgement of the Supreme Court in the case of Nagrik Upbhokta M.Manch Vs. Union of India and ors. etc. reported in (2002) 5, Supreme Court Cases 466, and specifically on paragraph 15 which reads as follows : “ 15. If the State Government undertakes to ensure distribution and availability of an essential commodity by public distribution system, it has to provide for a system and make the commodity available. Provision has to be made for maintaining the system independent of the price of the essential commodity sought to be distributed. Any tax or fee or levy, for the matter of that, must satisfy the requirement of Article 265 of the Constitution apart from the legislative competence.” 7. The Supreme Court has made these observations in an entirely different context. The Court found that the State Government of Madhya Pradesh, the Director, Department of Food,Civil Supplies and Consumer Rights and the Collectors had sought to collect an amount from the wholesalers of kerosene by “rounding off” for the purpose building a separate corpus for administering the public distribution system for kerosene. It was held that the aforesaid authorities had arrogated to themselves the power to collect a sort of tax. Such a levy was found to be completely unauthorised. It is in these circumstances that the the Supreme Court had commented on the conduct of the State. The facts in the present case are entirely different and therefore these observations do not help the petitioner. W.P.No.168 of 2008 5 8. Kerosene, which is an essential commodity is being distributed by the State through the public distribution system. It is only the Hawkers or vendors of kerosene, who are affected by the reduction, if any, of the quota of kerosene allotted to them for distribution by the State. We see no reason to exercise the extraordinary writ jurisdiction of this Court. Petition rejected. 9. The learned Advocate for the petitioner submits that the interim relief, which has been running in favour of the petitioner since January 2008 should be continued for a period of eight weeks. We accordingly direct that the interim relief granted earlier shall continue for a period of eight weeks from today. ( S.S. SHINDE, J. ) ( SMT. NISHITA MHATRE, J. ) (vvr/168.08wp)