COMMON ORDER: The petitioner in W.P. No.17868 of 1994 is a retailer for kerosene operating under the parallel marketing system and is supplying white kerosene to the general pubic as per rules. According to the petitioner, the Government of India, Ministry of Petroleum and Natural Gas issued a Notification dated 2.9.93 in G.S.R. 584(E) by virtue of the powers conferred under Sec.3 of the Essential Commodities Act in and by which, the Government of India permitted the import of kerosene by parallel marketing system and dividing the kerosene distribution system into two batches, one as public distribution system and another as parallel marketing system. Under the said notification, no licence is required for a retailer operating under the parallel marketing system. By the impugned order of the first respondent made in letter No.11265/F2/93, dated 27.11.1993 the 1st respondent has directed the applicability of all the provisions of the Tamil Nadu Kerosene (Regulation of Trade) Order, 1973 to the dealers under parallel marketing system also. Based upon the said directions, the 3rd respondent by the subsequent order made on 6.8.1994 by exercising the powers conferred under Sec.5(a)(1) of the Essential Commodities Act, 1955 issued a notice of confiscation of 1600 litres of white kerosene which was found in the possession of the petitioner without valid licence and the consequential order of confiscation issued by the 3rd respondent dated 18.9.1994. 2. The petitioner in W.P. No.17889 of 1994 is also a wholesale dealer for kerosene operating under the parallel marketing system. The petitioner has challenged the letter of the first respondent dated 27.11.1993 making the provisions of the Tamil Nadu Kerosene (Regulation of Trade), Order 1973 applicable to the sale of kerosene under the parallel marketing system. 3. Since the issue involved in both the writ petitions is one and the same, both the writ petitions are taken up together for final disposal. 4. 3. Since the issue involved in both the writ petitions is one and the same, both the writ petitions are taken up together for final disposal. 4. Mr.D. Peter Francis, learned counsel for the petitioners in both the writ petitions would contend that the impunged order of the first respondent made in letter No.11265/F2/93, dated 27.11.1993 directing the applicability of the Tamil Nadu Kerosene (Regulation of Trade) Order, 1973 (hereinafter referred to as the “State Order”) to the dealers under parallel marketing system also is not in conformity with the provisions of the Notification issued by the Ministry of Petroleum and Natural Gas in G.S.R. No.584(E), dated 2.9.1993 making the Kerosene (Restriction on Use and Fixation of Ceiling Price) Order, 1993 (hereinafter referred to as the “Central Order”). According to the learned counsel, under the “Central Order” no licence is required for a dealer who is engaged in sale of kerosene under the parallel marketing system. There is no corresponding clause insisting such a licence in the “State Order” also. By the impugned Order, the first respondent has directed the applicability of the “State Order” to the dealers in white kerosene under parallel marketing system also. Such a condition making a provision of licence as mandatory for a dealer engaged in parallel marketing system is totally outside the powers of the first respondent. Hence, the learned counsel submitted that the impugned order of the first respondent dated 27.11.1993 is liable to be set aside and the consequential proceedings of confiscation issued in respect of kerosene possessed by the petitioners are also liable to be set aside. 5. The learned Government Advocate on the other hand would submit that the petitioners even though are engaged in dealing with kerosene under the parallel marketing system, the State by virtue of the powers conferred under Sec.3 of the Essential Commodities Act is empowered to make the “State Order”. Accordingly, the “State Order” has been made by the State insisting the licence for trading in white kerosene under parallel marketing system also. Therefore, by the impugned letter dated 27.11.1993, the first respondent was well within the right to direct the applicability of the “State Order” to the dealers of white kerosene under parallel marketing system also. 6. Accordingly, the “State Order” has been made by the State insisting the licence for trading in white kerosene under parallel marketing system also. Therefore, by the impugned letter dated 27.11.1993, the first respondent was well within the right to direct the applicability of the “State Order” to the dealers of white kerosene under parallel marketing system also. 6. In view of the rival submissions, it is to be now seen as to whether by the impugned letter the first respondent can insist upon the petitioners to get the licence to deal with white kerosene under parallel marketing system also. Sec.3 of the Essential Commodities Act enables the State Government as well as the Central Government to frame control orders for the purpose of maintaining supplies of kerosene and for securing its equitable distribution and availability at fair prices. By virtue of the said powers, the Central Government have made kerosene (Restriction on Use and Fixation of Ceiling Price) Order, 1993 namely the “Central Order”. For the disposal of the writ petitions, the following few provisions of the order are worth mentioning. “(c)”dealer means a person, firm, association of persons, company, institution, organisation or a co-operative society approved by Government Oil Company or Central or State Government or a parallel marketeer and engaged in the business of buying and selling kerosene. (h) “parallel marketeer” means any person, firm, company, institution, association of persons, co-operative society or organisation carrying on the business of importing, refining, producing, packing, marketing, distributing and selling kerosene under the parallel marketing system. (i) “parallel marketing system” means the system other than the public distribution system, under which a person imports, transport, packs, distributes or sells kerosene under his own arrangement. (j) “public distribution system” means the system of distribution, marketing or selling of kerosene at declared price through a distribution system approved by the Central or State Government. (k) procurement, storage, and sale of kerosene under the public distribution system: (l) No dealer having stocks of kerosene supplied under the public distribution system at the business premises, including the place of storage: (a) shall, unless otherwise directed by the Government or Government, Oil company, refuse to sell, distribute or supply the kerosene to any consumer on any working day, during working hours. (b) shall keep his business premises, including the place of storage, closed during working hours on any working day without the prior written permission of the Government or the Government oil company. (c) shall sell, distribute or supply kerosene at a price higher than that fixed by the Government or Government oil company. (2) Every dealer appointed under the public distribution system shall take all reasonable steps to ensure that adequate stocks of kerosene are available at the business premises including the place of storage at all times. Explanation: For the purpose of Sub-clause (1) of the expression “working hours” means the working hours fixed by the concerned Oil company in accordance with the Shops and Establishments Act in force in the respective State or Union Territory." As per the said Central Order, procurement, storage and sale of kerosene under the public distribution system is restricted to the dealer/ retailer only when the appropriate licence is secured. On the other hand, under the parallel marketing system which is defined as a system other than the public distribution system, a person can import, transport, pack, distribute or sell kerosene under his own arrangement. Under the Central Order, there is no specific provision, for the dealers under parallel marketing system to obtain licence. 7. In the Tamil Nadu Kerosene (Regulation of Trade) Order, 1973 made under the powers conferred under Sec.3 of the Essential Commodities Act, nowhere in the said order it is stipulated that a licence is required for a dealer when he deals with white kerosene under parallel marketing system. Precisely, to be stated that in both the Central and State Orders, no such requirement of obtaining any licence by a parallel marketeer is stipulated as a precondition to deal with kerosene under parallel marketing system. 8. On the above factual position in regard to the Central and State Orders, it is to be now seen as to whether by the impugned letter, the first respondent can insist upon the dealers in white kerosene under the parallel marketing system to obtain licence. The impugned letter of the first respondent dated 27.11.1993 is extracted as under. ”As you are aware, a major policy decision has been taken by the Government of India recently to improve the availability of kerosene by introduction of a Parallel Marketing System. The impugned letter of the first respondent dated 27.11.1993 is extracted as under. ”As you are aware, a major policy decision has been taken by the Government of India recently to improve the availability of kerosene by introduction of a Parallel Marketing System. Under the new policy, there is no change in the distribution of kerosene under the Public Distribution System on the present lines. In addition, a parallel marketing system is introduced under which the parallel marketeer can import and carry on the business of marketing kerosene without any restriction on the channels of distribution margins and prices. This system is entirely run by the private sector and the Government of India’s approach is to encourage the system so as to improve the availability of kerosene. A copy of the new order viz., Kerosene (Restriction on Use and Fixation of Ceiling Prices) Order, 1993 issued by the Government of India in their notification dated 2.9.1993 has already been sent to you. In terms of the above order, the Kerosene (Restriction on Use and Fixation of Prices) Order, 1966 and the Kerosene (Fixation and Ceiling Prices) Order, 1970 have already been repealed. (2) In the light of the above, the advisability of extending all the provisions of the Tamil Nadu Kerosene (Regulation of Trade) Order, 1973 is being examined by the State Government. As you are aware, this Order, as it stands today, will govern the dealers under the parallel marketing system also. It is felt that there may be no need to extend all the restrictive provisions of this order to the parallel marketing system and it may be enough to keep a minimum control over the new system. It may take sometime before the Government Orders are obtained and necessary statutory amendments are made. In the meanwhile, certain parallel marketees have already started importing kerosene and have requested for exemption from the licensing provisions of this order. Pending statutory amendments, you are requested to follow the under mentioned procedure to deal with all the applications from the persons engaged in the parallel marketing system...." A reading of the said order would show that the advisability of extending all the provisions of the Tamil Nadu Kerosene (Regulation of Trade) Order, 1973 is being examined by the State Government. Pending statutory amendments, you are requested to follow the under mentioned procedure to deal with all the applications from the persons engaged in the parallel marketing system...." A reading of the said order would show that the advisability of extending all the provisions of the Tamil Nadu Kerosene (Regulation of Trade) Order, 1973 is being examined by the State Government. Pending statutory amendments, the officers have been directed to insist upon the license provisions to the parallel marketeers dealing in kerosene under the parallel marketing system. On the date when the impugned letter dated 27.11.1993 was issued, there was no amendment to the State Order enabling the State to insist upon the licence to the dealers in white kerosene under parallel marketing system. When the writ petitions were taken up for hearing, the learned Government Advocate was directed to verify as to whether any subsequent amendment has been introduced in the "State Order" making the dealers in white kerosene under the parallel marketing system to obtain licence. On instructions, the learned Government Advocate submitted that there is no such amendment made so far. In the light of the said submission and on the basis of the fact that there is no provision for insisting the licence on dealers dealing in white kerosene under parallel marketing system either under the "Central Order" or under the "State Order", it is to be held that by the administrative order dated 27.11.1993 as has been directed by the first respondent, the respondents cannot insist the dealers in white kerosene under the parallel marketing system to obtain a licence. The Control Orders are made by the Central Government and the State Government by virtue of the powers conferred under Sec.3 of the Essential Commodities Act and pursuant to the said power, both the Central Government and State Government have infact made Central Order and State Order. As found earlier in both the orders there is no provision for insisting a licence for a dealer when he deals with white kerosene under the parallel marketing system. If that be so, the first respondent by the impugned order and by virtue of administrative instruction cannot issue directions to the dealers dealing in white kerosene under parallel marketing system to obtain licence. If that be so, the first respondent by the impugned order and by virtue of administrative instruction cannot issue directions to the dealers dealing in white kerosene under parallel marketing system to obtain licence. In the absence of specific order either under the "Central Order" or under the "State Order", no administrative instruction can be given by the first respondent touching upon the matters related to the powers conferred on the Government under Sec.3 of the Act. The power under Sec.3 of the Act can be exercised only by the respective Governments and by making amendment of the respective orders. Admittedly, no such amendment has been made so far. In the absence of such amendment, the impugned order of the first respondent insisting upon the dealers who are dealing in white kerosene under the parallel marketing system to obtain a licence is totally outside his powers and cannot be sustained in the eye of law. Accordingly, I find force in the contention of the learned counsel for the petitioners that in the absence of any provisions either under the “Central Act” or under the “State Act” for a dealer dealing in white kerosene under the parallel marketing system to obtain a licence, insisting upon such a licence is outside the purview of the “State Order”. Accordingly, the impugned order of the first respondent is quashed and the consequential proceedings of confiscation ordered by the respondents pursuant to the impugned order of the first respondent dated 27.11.1993 is also quashed and the writ petitions are allowed. In view of the same, the petitioners are entitled to the return of the white kerosene confiscated or the value of the same and the respondents shall pass orders on the above within a period of two months from the date of receipt of a copy of this order. However, the order in the writ petitions shall not be construed as one preventing the State Government from bringing out necessary amendments to the “State Order” by insisting on the dealers who are dealing with white kerosene under parallel marketing system to obtain licence. No costs. Consequently, connected W.M.Ps. are closed.