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2000 DIGILAW 791 (KAR)

S. P. THIRUMALA RAO v. UNION OF INDIA

2000-11-29

A.V.SRINIVASA REDDY, ASHOK BHAN

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A. V. SRINIVASA REDDY, J. ( 1 ) THE petitioner has filed this petition praying for a writ of mandamus directing the respondents not to implement the Tatkal Scheme. Under the Tatkal Scheme a person paying Rs. 4,000/- would be given out of turn allotment of LPG cylinders for domestic use. ( 2 ) THE petitioner has averred in the petition that the marketing of lpg is being regulated by the first respondent through three Public sector Companies and several private dealers. As there were many shortcomings in the marketing of LPG, a Committee under one Mrs. Sudha Joshi was appointed to study the problems of the LPG consumers and dealers and submit its recommendations. The Committee submitted its report and the first respondent accepted it. It is the grievance of the petitioner that though the first respondent accepted it, it has not so far given effect to any of the recommendations of the Committee and on the other hand it has now come up with the impugned Tatkal Scheme for out of turn allotment of LPG connections to persons who pay Rs. 4,000/ -. It is the case of the petitioner that this out of turn allotment of LPG connections under the Tatkal Scheme is discriminatory and it would enable the persons having better means to get the connection immediately at the cost of the not so privileged who would be constrained to wait longer for the connections because of the out of turn allotments under the Tatkal Scheme. The petitioner has also drawn the attention of the Court through the averments in the petition to the pricing policy adopted by the first respondent which, according to him, brings about a loss of Rs. 2. 00 to 2. 50 crores per annum to the Government. On the basis of these and other averments made in the petition, the petitioner has sought for a direction to the respondents not to give effect to the tatkal Scheme. ( 3 ) THE petitioner filed this petition in the year 1997 i. e. , immediately after the introduction of the Tatkal Scheme. During that period there was a long waiting list for availment of the LPG connections and a dual price structure was being adopted by the respondents. The present scenario is radically different from the one that existed at the time of filing of the writ petition. During that period there was a long waiting list for availment of the LPG connections and a dual price structure was being adopted by the respondents. The present scenario is radically different from the one that existed at the time of filing of the writ petition. Now the subsidy has been minimised to a large extent in the case of domestic consumers and no subsidy is being provided to the commercial consumers. Thus, the grievance of the petitioner insofar as the pricing of the LPG cyclinders does not really survive for consideration. ( 4 ) THE waiting list for LPG connections, both in the domestic and commercial front, has also dwindled substantially and the connections could be got within a short time. The first respondent recently had come out with a statement that in the near future the connections would be available to consumers on demand. Thus, the grievance made out by the petitioner that persons who have waited for years would be deprived of their connections and persons with better means would get preferential treatment also would not survive as the waiting list is almost obliterated. Thus, in the present state of affairs there is little need for our interference in the matter. ( 5 ) COMING now to the legal aspects of the matter, though the petitioner has made the Union of India and the State of Karnataka as the respondents, his real grievance is against the three public sector companies viz. , Bharath Petroleum Company, Indian Oil Company and Hindustan petroleum Company. These companies are established under the companies Act with the sole object of doing business and making profit. The power of the respondents in relation to the business that is being carried on by these companies is limited to regulating the business through the provisions of Explosives Act, 1884 ('the Act' for short) and explosives Rules, 1983 ('the Rules' for short ). The Act and the Rules provide sufficient safeguards for the proper and safe conduct of the business in explosives and any violation thereof either by these companies or their agents can be visited under Section 6-E of the Act with punishment which includes revocation of the licence. The petitioner ought to have brought to the notice of the licensing authority any violation of the conditions of licence committed by these companies or their agents. The petitioner ought to have brought to the notice of the licensing authority any violation of the conditions of licence committed by these companies or their agents. It is only if the licensing authority failed to act, even after being apprised of such violations, that the Court can interfere in the matter. ( 6 ) SUB-SECTION (3) of Section 6-E provides for revocation of the licence or suspension of the licence. Sub-section (3) reads"6-E. Variation, suspension and revocation of licences. (1 ). . . . . . (2 ). . . . . . (3) The licensing authority may, by order in writing, suspend a licence for such period as it thinks fit or revoke a licence, (a ). . . . . . (b ). . . . . . (c ). . . . . . (d) if any of the conditions of the licence has been contravened; or (e ). . . . . ". The Act also provides power to prosecute holder of a licence of any offence under the Act or the rules made thereunder. ( 7 ) ENOUGH checks are provided under the Act and the Rules to regulate the business in explosives and to punish the persons violating the provisions of the Act and the Rules. The petitioner ought to have first moved the licensing authority, complaining of the alleged violations by the agents if any, of the three companies, before moving this Court. Petitioner could have moved this Court only if the concerned authority failed to act in the matter. Where a statutory remedy is available to the petitioner he ought to have exhausted the same before approaching this court. It is not the case of the petitioner that he had approached the concerned authority in the matter and the authority failed to act on his complaint. In Titaghur Paper Mills Company Limited v State of Orissa, the Apex Court had occasion to deal with the maintainability of a writ petition questioning the validity of sales tax assessment. The Apex court having found that there is a special and adequate remedy existing under the relevant statute containing self-contained machinery provisions, held:"where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute alone must be availed of. . . . . . . . The Apex court having found that there is a special and adequate remedy existing under the relevant statute containing self-contained machinery provisions, held:"where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute alone must be availed of. . . . . . . . the Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act, and not by a petition under Article 226". ( 8 ) THE grievance of the petitioner insofar as the introduction of 'tatkal' scheme is concerned, the scheme was challenged before the Delhi high Court in public interest litigation. The High Court of Delhi upheld the scheme by holding that it was purely a matter of policy. The High court of Delhi made the following observations in this regard:"however, we would like to take judicial notice of the fact that lpg is supplied at subsidised price, that is to say, at a price lower than its cost. If the Government comes out with a policy for those persons, who are in a position to pay, with the objective to augment the revenue, we would not like to interfere with the same, as it is within the sphere of policy. In Asif Hameed and others v State of Jammu and Kashmir and Others, the Hon'ble supreme Court held that the Court should not enter into the policy decision of the executive. Similarly, in Dr. (Mrs.) Sushma sharma v State of Rajasthan and Others, it is stated that the wisdom or lack of wisdom of the Government is not justiciable by court". While so holding, their Lordships also noted that a similar challenge to the scheme made in Kerala High Court in K. K. Chandran and Another v union of India and Others, was rejected and the scheme was upheld by the Kerala High Court. We are in respectful agreement with the view expressed by the Delhi High Court. While so holding, their Lordships also noted that a similar challenge to the scheme made in Kerala High Court in K. K. Chandran and Another v union of India and Others, was rejected and the scheme was upheld by the Kerala High Court. We are in respectful agreement with the view expressed by the Delhi High Court. ( 9 ) A differential treatment made on the basis of a reasonable classification is permissible in law provided it satisfied two conditions, namely (i) it must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (ii) the differentia must have a rational relation to the object sought to be achieved by the statute in question. Under the scheme preference is given to those who come forward to pay a price higher than what is prescribed for the rest. This difference in price is an intelligible differentia aimed at augmenting revenue which is loss to the Government by way of subsidy provided to the consumers. It does not amount to negation of equality as the scheme is not limited to any particular class of the society and it is thrown open to all those who are willing to pay the enhanced price. Therefore, the scheme cannot also be faulted on the ground that it violates Article 14 of the Constitution. ( 10 ) THUS, both in law and on facts, there is no merit in the writ petition and it is, accordingly, dismissed. --- *** --- .