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, 1685 and 3615/2001 W.P.No. 17933 of 1990 C. Saraswathi. ..... Petitioner Vs. 1. The Commissioner, Civil Supplies Corporation, Madras-5. 2. The District Collector, VOC District. 3. The District Supply Officer, VOC District, Tuticorin. 4. Arasan and Company, Kovilpatti. 5. The State of Tamil Nadu, represented by its Secretary to Governmment, Food and Co-operation Department, Madras-9. (R-5 impleaded as per order of Court dated 23-11-92). ..... Respondents. W.P.No. 18793 of 1990 C. Saraswathi. .. Petitioner. Vs. 1. The Indian Oil Corporation, represented by its Regional Manager, Nungambakkam High Court, Madras-34. 2. The Oil Selection Board (South Zone), 134, Nungambakkam High Road, Madras-34. 3. The Commissioner of Civil Supplies and Consumer Protection, Chepauk, Madras-5. .. Respondents. W.P.No. 1092 of 90 T. Paulraj. .. Petitioner. Vs. 1. Indian Oil Corporation Ltd., represented by the Regional Manager, Nungambakkam, Madras-34. 2. The Oil Selection Board of Indian Oil Corporation Ltd., South Zone, 134, Nungambakkam High Road, Madras-600 034. 3. The Commissioner, Civil Supplies Corporation, Chepauk, Madras-600 005. .. Respondents. W.P.No. 1093 of 1991 T. Paulraj. .. Petitioner. Vs. 1. The Commissioner, Civil Supplies Corporation, Madras-5. 2. The District Collector, VOC District. 3. The District Supply Officer, VOC District, Tuticorin. 4. Arasan and Company, Kovilpatti. 5. The State of Tamil Nadu, represented by its Secretary to Governmment, Food and Co-operation Department, Madras-9. (R-5 impleaded as per order of Court dated 30-11-92). .. Respondents.` W.P.No. 2668 of 2001 C. Saraswathi. .. Petitioner. Vs. 1. The Government of Tamil Nadu, represented by its Secretary to Government, Civil Supplies and Consumer Protection Department, Fort St. George, Chennai-9. 2. The Commissioner of Civil Supplies and Consumer Protection Department, Chepauk, Chennai-5. 3. The District Supply Officer, Tuticorin. .. Respondents. Petition under Article 226 of the Constitution of India for issuance of Writs of Declaration and Mandamus as stated therein. !For Petitioner in W.P.Nos. : Mr. D. Peter Francis 17933/90, 18793/90 and 2668 of 2001. Mr. V. Natarajan for petitioner in W.P.Nos. 1092 and 1093/1990. ^For Respondents : Mr. S. Kandaswamy, Special Govt., Pleader for R1 to R3 and R5 in W.P.17933/90 and 1093/91 for R3 in W.P.18793/90, 1092/91 and for R1 to R3 in W.P.2668/01. Mr. N. Ishtaq Ahamed for R-1 and R-2 in W.P.Nos. 18793/90 and 1092/91. :COMMON ORDER Since challenge in all these writ petitions relate to the same Government Order, they are being disposed of by the following common Order. One C. Saraswathi has filed W.P.No. 17933/90 seeking to issue a writ of Declaration declaring that the amendment to Tamil Nadu Kerosene (Regulation of Trade) Order, 1973 in G.O.Ms.No. 134 Food and Cooperation, dated 26-2-1982, is ultra vires and unconstitutional and consequently direct the respondents to supply kerosene to her uninterruptedly as before. The very same petitioner has also filed W.P.No. 18793/90 seeking to issue a writ of Mandamus directing the respondents (Indian Oil Corporation) and the Commissioner, Civil Supplies and Consumer Protection, Madras-5 to recognise her as a dealer under the first respondent for the supply of kerosene for the Ottapidaram Taluk, pursuant to the licence granted to the petitioner in Licence no. 24 TNV issued under the Tamil Nadu Kerosene (Regulation of Trade) Order, 1973. Similar relief, namely, writ of Declaration and Mandamus has been prayed for by one T. Baulraj in Writ Petition Nos. 1092 and 1093 of 1991. C. Saraswathi, petitioner in the first two writ petitions has filed another writ petition, namely, W.P.No. 2668/2001 seeking to issue a writ of Declaration to declare that the licence granted to her bearing No.24/TNV in D.Dis. 19003/74 is deemed to have been renewed in terms of the Tamil Nadu Kerosene Control (Regulation of Trade) Order, 1973 and consequently direct the respondents to renew her licence in terms of Rule 4 (3) of the said Kerosene Control Order. 2. For convenience I shall refer the case of C. Saraswathi, petitioner in W.P.Nos.17933, 18793/90 and 2668/2001. In 1973 Ottapidaram Taluk was newly formed and as per the policy of the Government each Taluk is to have a wholesaler and no transport of kerosene from one Taluk to another Taluk is permitted. The petitioner was asked to open a wholesaler point for distribution. Accordingly, she was granted licence under the Tamil Nadu Kerosene (Regulation of Trade) Order, 1973 (hereinafter referred to as the "Kerosene Control Order"). As per the definition "whosaler", there is no condition in the wholesaler licence or under the provisions of the Kerosene Control Order that in order to be a wholesaler, a person should hold a dealership agreement with the Indian Oil Corporation. The petitioner was granted with wholesaler licence bearing No. 24 TNV. The petitioner was also got licence for the import of petroleum products in accordance with the Petroleum Act, 1934. She has been carrying on business and selling kerosene to the retailers and other cooperative societies and Civil Supplies Department as per the directions of the authorities. When she was lifting the allotted kerosene through the 4th respondent and carrying on business without any difficulty on 31-10-81, the District Supply Officer passed an order in and by which as per the policy of the Government, unless a person gets a dealership from the oil companies, the wholesaler will not be supplied with kerosene. The said order was challenged by her in Writ Petition No. 1476/82 before this Court. On the basis of the statement made by the Government Pleader that the said condition will not be insisted, and after recording the same, this Court dismissed the writ petition. Again on 30-11-82, she received a letter from the 4th respondent informing that from November, 1982 onwards kerosene will not be supplied to her since she did not have any direct dealership from the oil companies. Challenging the action of the 4th respondent, she filed W.P.No. 10562/82. Meanwhile the Government brought an amendment to Kerosene Control Order and issued G.O.Ms.No. 134, Food and Cooperation dated 26-2-82 whereunder a wholesaler has been defined. In view of the said amendment and embargo on selling kerosene by one wholesaler to another wholesaler, this Court dismissed the writ petition. To the same effect, Writ Appeal No. 1111 of 90 was also dismissed by this Court. In the said circumstances, the petitioner has filed these writ petitions questioning the impugned Government Order and seeking a direction to the Indian Oil Corporation to recognize her as a dealer and to declare that her licence is deemed to have been renewed in terms of Kerosene Control Order. Raising similar contentions, another person by name Baulraj has prayed for similar relief. 3. Though initially the State of Tamil Nadu is not a party in these proceedings, subsequently the petitioner C. Saraswathi has impleaded the State of Tamil Nadu represented by Secretary to Government, Food and Cooperation Department as 5th respondent in W.P. No. 17933 of 90. Though the Government and other respondents have filed a separate counter affidavit, the counter affidavit of the District Supply Officer is exhaustive and relevant. Here again, as stated earlier, I shall refer the stand of the District Supply Officer, Chidambaranar District, Tuticorin in W.P.No. 17933/90. It is stated that C. Saraswathi was granted kerosene wholesale licence No.24/TNV in the year 1974 before bifurcation of the District. She was getting supply of kerosene through Arasan and Company, Indian Oil Corporation dealer, Koilpatti and supplying kerosene to the retailers under Public Distribution points as per the allotment orders of the District Supply Officer, in Ottapidaram Taluk. Subsequently, Tamil Nadu Kerosene ( Regulation of Trade) Order, 1973 was amended in G.O.Ms.No. 134, Food and Co-operation Department, dated 26-2-82. The District Supply Officer, Tirunelveli issued a notice to her to show cause against the cancellation of her wholesale licence for kerosene since she has no dealership agreement with any of the Oil Companies. After disposal of her earlier writ petitions, including the last one namely W.P.No.10562/82 dated 19-10-90, action was initiated to stop supply of kerosene to the petitioner. Again the petitioner approached this Court and obtained an order of injunction. The fact that the petitioner is a wholesale licensee is not disputed. The allotment of kerosene for every month is based on the policy of the Government of India. It is true that Oil Companies supply kerosene to their dealers who are having wholesale licences under Tamil Nadu Kerosene (ROT) Order, 1973. These wholesalers pay the cost of kerosene to the oil companies, received supply from the installation points and sell it to the authorized dealers. Certain wholesale licensees who had not been appointed as dealers of oil companies were getting supply of kerosene from wholesale dealers who are dealers under oil companies before the amendment. With a view to prevent misuse of kerosene it was decided not to permit the sale of kerosene by one wholesaler to another wholesaler and amendments in G.O.Ms.No. 134 Food and Cooperation Department dated 26-2-82 were issued to the Tamil Nadu Kerosene (ROT) Order, 1973. In accordance with the said amendments, no wholesale dealer can sell kerosene to another wholesaler dealer. The amendment was given effect to prospectively from the date of the amendment. The petitioner cannot insist supply from another wholesaler. Since the matter in issue has also been issued by this Court in W.P.No. 10562/82 dated 19-10-90, the petitioner is not permitted to raise once again the same points. Further, the wholesale licence issued to the petitioner is still intact and no harm done by the respondents. The Indian Oil Corporation itself informed the petitioner that it will not supply to the petitioner as she was not a dealer of the Oil firm. None of the fundamental rights of the petitioner is taken away. In fact the petitioner has been issued a valid licence by the respondents to enable her to deal in kerosene. If the Indian Oil Company refused to supply kerosene directly or through any one of their dealer as the petitioner was not an authorized dealer of the Indian Oil Company, inconsonance with their rules and regulations, the petitioner cannot have any grouse against the respondents. Kerosene belonged to the oil companies, which supply this products to this State through their authorized dealers. The respondents are concerned only with the proper distribution of kerosene by these dealers to the retailers and consumers enforcing the Tamil Nadu Kerosene(RT)Order 1973 to ensure its equitable distribution at fair prices. With the valid licence on hand, she has to approach the oil companies and obtain dealership for the uninterrupted supply of kerosene for trade. If a wholesaler is permitted to sell to another wholesaler, then the cardholders will be denied their quota of kerosene to the extent of kerosene sold. This will result in maldistribution of this product. This cannot be allowed under Essential Commodities Act, 195 5. Similar averments have been made in the other cases also. 4. In respect of prayer for direction to the Indian Oil Corporation to consider the application of the petitioners, Indian Oil Corporation has filed a counter affidavit stating that there is no statutory legal or other duty cast on them to appoint the petitioner or any other person as dealer. The petitioner has no right under any statute or law or otherwise to compel the respondent to appoint him as a dealer. The question of appointment of a dealer for any particular area depends on a variety of factors such as market potential, economic viability and the number of existing dealers in that area. If there are already one or more dealers in a particular area, unless there is scope or justification for appointment of a new dealer based on the market potential or economic viability, the matter of appointment of a new/additional dealer has to be decided by the oil industry and should there be a need for such appointment the proposal would be put up to the Ministry of Petroleum for approval. On getting the approval from the Ministry, a roster will be prepared. Thereafter, the oil company for which the dealer is to be appointed will release an advertisement calling for applications from the category under which the dealer is to be appointed. The applications will be scrutinized and eligible candidates will be interviewed by the Oil Selection Board. The selection will be based on the performance at the interview. On the final recommendation of the Oil Selection Board, the Oil Company will appoint the dealer. A dealer cannot be appointed now without following the above procedure. In view of the above said procedure, the question of the Indian Oil Corporation appointing the petitioner as its dealer as suggested by the whole-saler does not arise now. They are supplying the kerosene to the petitioner based on the allocation given by the District Supply Officer. If for any reason, the petitioner did not get any allocation from the authorities concerned, the respondent cannot in any way be responsible. Indian Oil Corporation has filed similar counter affidavit in other writ petitions. 5. In the light of the above pleadings, I have heard the learned counsel for the petitioners as well as respondents. 6. Messrs. D. Peter Francis and V. Natarajan, learned counsel for the petitioners contended that the impugned Government Order is violative of Article 19 (1) (g) of the Constitution of India. They also contended that there is no rule that a wholesaler should be a dealer under oil companies. In any event, the amendment is only prospective and it cannot alter the licence conditions of the petitioners. According to them, inasmuch as the impugned order was not gazetted in the Tamil Nadu Government Gazette, they cannot have any force at all. They further contended that in view of the fact that the Government Orders were not available the respondents are not permitted to enforce the same. On the other hand, Mr. S. Kandaswamy, learned Special Government Pleader, after taking me through the relevant provisions from the Essential Commodities Act and Kerosene Control Order, would contend that the impugned G.O.Ms.No.134 dated 26-2-82 was duly published in the Tamil Nadu Government Gazette and the copies were also available at the relevant time. He also contended that the Government is well within their powers to amend the definition " wholesaler" in order to protect the interests of the consumers. Inasmuch as the Government have power to amend Control Orders in the interests of the consumers and for proper distribution of kerosene to all eligible persons, the action of the Government cannot be faulted with and there is no merit in any of the writ petitions; accordingly the same are liable to be dismissed. 7. I have carefully considered the rival submissions. 8. Among the other contentions, I shall consider the contention of Mr. D. Peter Francis that the impugned Government Order namely G.O.Ms.No. 134 Food and Cooperation dated 26-2-82 has not been published in the gazette and not available for public. Though both the petitioners filed separate writ petitions questioning the amendment to the Tamil Nadu Kerosene (Regulation of Trade) Order, 1973, pursuant to G.O.Ms.No. 134 Food and Cooperation dated 26-2-82, they have not even included a copy of the said Government Order for perusal of the Court. Due to non-production of even a copy of the said Order, I am unable to understand how a challenge has been made in these writ petitions. On direction by this Court, learned Special Government Pleader has produced a copy of the impugned Government Order which was published in the Gazette dated 26-2-1982 (Part III-Section 1 ( a)). Apart from producing the gazette copy of the impugned Government Order, the learned Special Govt., Pleader also contended that copies were available for the benefit of the public at the relevant time. In the light of the production of a copy of the Government Order, along with the gazette notification which contains the said order, I am of the view that the first contention of Mr. D. Peter Francis as to publication of the said Government Order and non availability to public has no basis; accordingly I reject the same. 9. Coming to the next aspect as to power of the Government, there is no dispute that by virtue of Section 3 of the Essential Commodities Act, 1955, the Tamil Nadu Kerosene (Regulation of Trade) Order, 1973 came to be passed. In G.O.Ms.No.274, Food and Cooperation, dated 10-10-73 as seen from The Tamil Nadu Kerosene ( Regulation of Trade) Orders, 1973 it was ordered that whereas the State Government are of opinion that for maintaining supplies of Kerosene and for securing its equitable distribution and availability at fair prices, it is necessary to provide for the licensing of kerosene. Section 2 defines "dealer, retailer, wholesaler" etc. Un-amended Clause 2 ( p) defines "wholesaler" as under: "Clause 2 (p) "Wholesaler" means a dealer who sells to other dealers and bulk consumers or other and includes any person or institution selling kerosene in bulk exceeding 20 litres at a time." By virtue of the impugned order, sub-clause (p) has been substituted as under: "Clause 2 (p) "Wholesaler" means a dealer who sells kerosene to registered retailers or to the persons who are in possession of special order under sub-clause (i) of clause 4 of Kerosene ( Restriction on Use) Order, 1966". Clause 3 deals with licensing of wholesalers and Clause 4 refers to issue of licence, period of licence and fee chargeable. We are not concerned with the other clauses. It is not disputed that the petitioners were issued wholesale licences in Form II under Tamil Nadu Kerosene Control Order. The purpose of issue of licence is to identify the wholesale dealers and to regulate and to control them as and when circumstances warrant. The licence only mentions the place of business and does not mention anything as entitlement quota and no supply is assured under the said licence. In the counter affidavit of the 5th respondent, it is stated that the Commissioner, Civil Supplies Corporation-first respondent herein submitted a proposal to the Government to the effect that in the context of scarcity of kerosene it is considered not desirable to permit a wholesaler to sell kerosene to another wholesaler as it becomes very difficult to check the proper disposal of the stock. It has also been stated that the accounts of the wholesalers can be effectively checked and the misuse of kerosene can be prevented only if the sale of kerosene by the wholesaler to another wholesaler is prohibited. It has also been stressed that it is particularly necessary in the context of a difference in the price between diesel and kerosene and on account of the lower price of kerosene the transport contractors are attempting to adulterate kerosene with diesel. The Government examined the proposal of the Commissioner, Civil Supplies carefully and passed the impugned order. It is also explained that the purpose and aim of the Government Order is to eliminate the persons who are virtually playing the role of middle man. In the light of the above discussion, I hold that the Government have power to amend the Kerosene Control Order in order to supply kerosene to the needy persons. 10. By referring to a decision of the Supreme Court in Chintamanrao v. State of M.P., reported in A.I.R. 1951 Supreme Court 118, Mr. Peter Francis has argued that the present action imposes unreasonable restrictions, and that, therefore, it is violative of the freedom guaranteed under Article 19 (1) (g) of the Constitution. It is true that in that decision Their Lordships have arrived at a conclusion that the statute which arbitrarily interferes with private business and imposes unreasonable and unnecessarily restrictive regulations upon lawful occupation is void and the same cannot be permitted. Admittedly, the petitioner was granted licence in terms of the Control Order. In such a circumstance, there is no question of interference in his avocation as claimed so long as he satisfies the licence conditions and the Control Order being enforced then and there. The other decision referred to by Mr. Peter Francis is in the case of Messrs. Dwarka Prasad v. State of U.P., reported in A.I.R. 1954 Supreme Court 224 wherein Their Lordships have held that a law or order which confers arbitrary and uncontrolled power upon the executive in the matter of regulating trade or business in normally available commodities cannot but be held to be unreasonable. For the same reasons, the said decision is also not helpful to the cases on hand. 11. It is relevant to note that the very same petitioner (C. Saraswathi) had already filed a writ petition namely Writ Petition No. 10562 of 82 seeking for a direction for supply of kerosene to her. J. Kanakaraj, J., while considering the amendment made to the Kerosene Control Order as well as the definition to the expression "whole-saler" as defined in clause 2 (p) of the Control Order, in the absence of dealership from a oil company and also taking note of the fact that the respondents have not prevented the petitioner from carrying on her business, dismissed the said writ petition. The learned Judge has also opined that the petitioner herself has to be blamed for refusal to obtain dealership from oil company. In the very same order, the learned Judge, while considering the definition "wholesaler" has also held that "...In view of the above amendments, I am clearly of the opinion that the petitioner cannot seek to get supply from another wholesaler..." It is further seen that the allotment of kerosene for every month is based on the policy of the Government of India and oil companies supply kerosene to their dealers who are having wholesale licenses under the Tamil Nadu Kerosene Control Order, 1973. These wholesalers pay the cost of the kerosene to the oil companies, received supply from the installation points and sell it to the authorized dealers. It is further seen that certain wholesale licensees who had not been appointed as dealers of oil companies were getting supply of kerosene from wholesale dealers who are dealers under oil companies before the amendment. With a view to prevent misuse of kerosene, it was decided not to permit the sale of kerosene by one wholesaler to another wholesaler and the impugned amendment was issued to the Kerosene Control Order. In accordance with the said amendment, no wholesale dealer can sell kerosene to another wholesale dealer. The fourth respondent -Arasan and Company who was a dealer of Indian Oil Corporation and from whom the petitioner was drawing kerosene, refused to supply kerosene under instructions from Indian Oil Corporation as the petitioners were not dealers of that oil company. As a matter of fact, the Indian Oil Corporation itself informs the petitioners that they will not supply to them as they were not dealers of oil firm. 12. I do not find any substance in the contention that the amendment has taken away their fundamental rights. In fact, C. Saraswathi has been issued with a valid licence by the respondents to enable her to deal in kerosene. If the Indian Oil Company refused to supply kerosene directly or through any one of their dealer as the petitioner was not an authorised dealer of the Indian Oil Company, inconsonance with their rules and regulations, the petitioner cannot have any grouse against the respondents. It is further seen that kerosene belonged to the oil companies, which supply this product to this State through their authorized dealers. As rightly argued by the learned Special Government Pleader, the respondents are concerned only with the proper distribution of kerosene by these dealers to the retailers and consumers enforcing the Kerosene Control Order and to ensure its equitable distribution at fair prices. 13. The amendment contained in G.O.Ms.No. 134 Food and Co-operation dated 26-2-82 banning sale of kerosene by a wholesaler to another wholesaler was a regulatory measure to discipline the trade and to eradicate certain malpractices in the