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2006 DIGILAW 1118 (MP)

CHANDGI RAM SHARMA v. STATE OF MADHYA PRADESH

2006-09-19

A.K.GOHIL, P.K.JAISWAL

body2006
ABHAY GOHIL, J. ( 1 ) PETITIONER, who is an agriculturist, Member of a Cooperative Society and a consumer of village Panchayat mungavli District Morena, has filed this probono Publico Petition under Article 226/ 227 of the Constitution of India. ( 2 ) PETITIONER's contention in a nutshell is that the respondents without having any statutory policy, notification, rules and schemes prescribed by the State Government under the essential Commodities Act are allotting the kerosene oil to the Gram Panchayat situated in Morena District and permitting the Gram panchayat to distribute the kerosene oil by ignoring the statutory provisions of law. Under the Public distribution scheme the kerosene oil can only be distributed through the cooperative societies. This action of the respondents permitting the Gram Panchayat to distribute is absolutely illegal and no such kerosene oil can be permitted to be distributed through the Gram Panchayat situated in morena District and has prayed that circular dated 13. 4. 2000 (Annexure P/5) issued by the collector District Morena be quashed and his contention is that distribution should be regularised as per the directions contained in madhya Pradesh (Khadya Padarth) Sarvajanik nagrik Poorti Scheme 1991 (hereinafter shall be referred to as "scheme of 1991") only through cooperative societies. ( 3 ) IN reply, the contention of the State government is that the circular dated 13. 4. 2000 (Annexure P/5) has been issued in public interest by the Collector with a view to effectively regulating the business of distribution of kerosene to the general public through the Gram Panchayat where the Government public distribution outlets are not available. The further submission of the respondent State is that the particular order under challenge has been passed with a view to preventing black-marketing and in the interest of general public. It is also the stand of the State Government that the petition has been filed with ulterior motive for the quashment of the order dated 13. 4. 2000 (Annexure P/5), which has been issued in public interest with a view to distributing the kerosene oil to Gram Panchayat situated in District Morena where no Government public distribution outlets are available. It is also the stand of the State Government that the petition has been filed with ulterior motive for the quashment of the order dated 13. 4. 2000 (Annexure P/5), which has been issued in public interest with a view to distributing the kerosene oil to Gram Panchayat situated in District Morena where no Government public distribution outlets are available. It is further contended that the petition has been filed with vested interest as he is the member of a particular cooperative society and because the licence was not issued in favour of his society for a particular year, therefore he has challenged the distribution through the Gram panchayat. ( 4 ) AFTER hearing the Counsel for the parties, the first question involved in this petition is whether the Collector by issuing an executive instructions can direct Gram Panchayat to distribute the kerosene oil in the District of morena. There is no dispute that the distribution of kerosene oil in the State of M. P. is regulated by Madhya Pradesh Kerosene Dealers licensing Order, 1979, which has been issued by the State of M. P. in exercise of the powers conferred by Section 3 of Essential Commodities act, 1955 (10 of 1955) read with Government of India, Ministry of Industries and Civil supplies (Department of Civil Supplies and cooperation) order No. SO (GE) dated 5th november 1974. We have perused the scheme of Madhya Pradesh Kerosene Dealers Licensing order, 1979 (hereinafter shall be referred to as 'licensing Order 1979' ). The aforesaid licensing Order was issued on 19th December 1979 and was published in the M. P. Gazette dated 22. 9. 1980. The policy of the Government was that with a view to maintaining supplies and for securing equitable distribution and availability at fair price of kerosene in the state of Madhya Pradesh, the aforesad Licensing order was issued. The following are the relevant clauses of Licensing Order 1979.-2 (a) "dealer" means a person engaged in the business of purchase, sale or storage for sale of kerosene, whether is wholesaler, semi-wholesaler or retailer and whether in conjunction with any other business or not, and includes his representative or agent but does not include an Oil Company specified in the schedule appended to this Order, storage Depot or Installation wherefrom no sales are made to general public. 2 (f) "licensing Authority" means the collector of the district having jurisdiction over the area in which a dealer carriers on his business and shall include any such officer as State Government may by notification, appoint in this behalf to exercise all or any of the powers of the licensing authority under this Order for any area specified therein; 3. Licensing of Dealers.- (1) No person shall carry on business as a dealer in Kerosene except under and in accordance with the terms and conditions of a licence issued in this behalf of the Licensing Authority. (2) Every person who is engaged in the business as a dealer in Kerosene at: the commencement of this Order shall obtain a licence within a period of thirty days of such commencement. " ( 5 ) UNDER Clause 4, application has to be filed for licence and under Clause 5 Licence shall be issued. Clause 6 provides period of licence and free chargeable. Clause 10 provides powers regarding cancellation and suspension of licence. Clause 13 is about deposit oil security. Clauses 16 and 17 are regarding appeal and revisions. Clause 18 provides power regarding entry, search, seizure. Clause 1. 9 provides that the State Government may by general or special order exempt any person or any class of persons from the operation all or any of the provisions of this Order and may at any time suspend or cancel such exemption. ( 6 ) THE State Government issued notification no. 7547-4961-XX1x-1i-79 dated 19th december 1979, whereby granted exemption to all the Cooperative Societies in the State, from the operation of the provisions of clause 13 of the said Order, which is about the deposit of security amount. By another notification no. 7555-4961-XX1x-11 dated 19th December 1979 in pursuance of Clause 19 of the Licensing Order 1979, the State: Government exempted all Government Fair Price shops from the provisions of Clauses, 3, 4, 6 and 13. From the aforesaid notification, it is clear that the provisions of Licensing Order 1979 are only applicable to the Government fair Price Shops and the Government can distribute the kerosene oil through the Govt. Fair price Shops through licence holders. From the aforesaid notification, it is clear that the provisions of Licensing Order 1979 are only applicable to the Government fair Price Shops and the Government can distribute the kerosene oil through the Govt. Fair price Shops through licence holders. Admittedly, there is no provisions in the Licensing order, 1979, which empowers the Collector to issue such direction for authorising the Gram panchayats to distribute the kerosene oil, without granting dealers Licence as required under clause 3 of the Licensing Order 1979. Thus, the Collector has no power to distribute the kerosene oil through the Gram Panchayat in the District Morena without issuing licences to them or without there being any notification in favour of the Gram Panchayat exempting them under Clause 19. Therefore, the action of the Collector appears to be without any authority of Law. ( 7 ) SO far as the next contention about the application of the provisions of aforesaid public distribution scheme of 1991 in the case of distribution of kerosene oil through cooperative societies is concerned, in fact, the aforesaid scheme of 1991 is only for regulating the public distribution system of Food Stuffs. In the Scheme the word "foodstuff" has been defined, according to which the "foodstuff" means, which has been mentioned in the madhya Pradesh Food Stuffs (Distribution)Control Order 1960. Under sub-clause (2) of clause 1 of the Control Order 1960, it has been mentioned that it shall apply to such areas and to such "foodstuffs" as the State Government may from time to time, by notification, specify in this behalf. State of Madhya pradesh vide notification dated 16. 8. 1993 has included 16 foodstuff items in the list of food stuffs, in which kerosene oil has not been shown as foodstuff. Therefore the said scheme of 1991 is not applicable so far as the distribution of kerosene oil is concerned and the said scheme of 1991 is only applicable to foodstuffs. ( 8 ) THE contention of the learned Counsel for the petitioner is that kerosene oil is being distributed through the Cooperative Societies and they have also been exempted from the provisions of Licensing Order 1979. ( 8 ) THE contention of the learned Counsel for the petitioner is that kerosene oil is being distributed through the Cooperative Societies and they have also been exempted from the provisions of Licensing Order 1979. But during the course of the arguments, learned counsel for the petitioner could not point out any notification whereby the Cooperative Societies have been exempted from the provisions of Clauses 3, 4, 6 and 13 of the Licensing order 1979, which is only about deposit of security amount. Further to support his contention, learned Counsel for the petitioner placed reliance on a Division Bench of this case in the Rajesh Kumar Gupta v. State of madhya Pradesh1 in which the question of distribution of kerosene oil through cooperative societies was considered. We have perused this judgment. In para 15, Court has mentioned that the distribution system which has been adopted is the distribution through the Government fair Price Shops being run by the cooperative Societies. In the another judgment in the case of Narendra Singh Kavrav and ors. v. State of M. P. and Ors. LPA No. 203/04 decided on 29. 9. 2004. directly this question was not involved and only the policy of the Government to distribute the kerosene oil was under challenge and it was found that the policy was not discriminatory and the question whether the provisions of the scheme of 1991 are applicable to the kerosene oil or not was not directly involved in that case. Therefore the aforesaid two cases are not helpful to the petitioners on this question. ( 9 ) IT is true that the learned Counsel for the respondents could not produce any notification, by which the Government has exempted gram Panchayat of Morena District from the provisions of Licensing Order 1979 nor in the reply it has been mentioned that any such licence under the Licensing Order 1979 has been issued in favour of the Gram panchayats for distribution of kerosene oil through them. It has also not been mentioned that under what powers the Collector Morena has issued aforesaid circular dated 13. 4. 2000 annexure P/5. Neither any government policy has been produced or mentioned in the reply. In our opinion, there is no notification either in favour of the Gram Panchayat or in favour of Cooperative Societies except the notification in favour of the Government Fair Price shops. 4. 2000 annexure P/5. Neither any government policy has been produced or mentioned in the reply. In our opinion, there is no notification either in favour of the Gram Panchayat or in favour of Cooperative Societies except the notification in favour of the Government Fair Price shops. It was stated that earlier government has issued policy to nominate cooperative societies as gfps. The learned Counsel for the petitioner except the two decisions could not produce any such notification or other document by which even cooperative societies have been exempted or authorised to distribute the kerosene oil. Thus, it appears that the Cooperative societies are also not authorised to distribute the kerosene oil, as there is no notification in their favour and the provisions of the Public Distribution Scheme of 1991 are also not applicable for the distribution of kerosene oil. Therefore, under the Licensing order 1979, the Government can distribute kerosene oil through the Government Fair price Shops not through any other agency but certainly Government can nominate any Co-operative societies or Gram Panchayat as the government Fair Price Shop and thereafter can allow the distribution of kerosene oil through that agency or the Licensing Authority may issue licence to any person or body or isociety for the distribution of the kerosene oil :to a dealer, whether it is wholesaler, semiwholesaler, or retailer as required under Clause 3 of the aforesaid Licensing Officer Order 1979. ( 10 ) THUS, in the light of the aforesaid discussion, the circular dated 13. 4. 2000 (Annexure P/5) issued by the Collector permitting the distribution of kerosene oil through the Gram Panchayat in the absence of any notification, policy or order is contrary to the provisions of Licensing Order 1979, therefore iit is hereby quashed. In fact the Collector has no such power under the aforesaid Licensing order 1979 to regulate such distribution system through Gram Panchayat or through any other agency in the absence of any particular notification. Even the cooperative societies unless they are authorised by a particular notification or Control order or scheme or granted licence under the Licensing Order 1979, car. not be allowed to distribute the kerosene. It is me only Government Fair Price Shops, which :an distribute the kerosene oil as per notification cited supra. Even the cooperative societies unless they are authorised by a particular notification or Control order or scheme or granted licence under the Licensing Order 1979, car. not be allowed to distribute the kerosene. It is me only Government Fair Price Shops, which :an distribute the kerosene oil as per notification cited supra. ( 11 ) IN view of the aforesaid observations, this petition is party allowed as indicated above and it is hereby dismissed for the rest of the relief. The amount of security be deposited in the High Court Bar Library. Petition disposed of accordingly. .