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2006 DIGILAW 125 (JK)

Karam Chand Saraf And Sons v. State

2006-05-16

NIRMAL SINGH

body2006
1. Petitioners, ten in number, are the agents of various Oil Companies and carrying on the business of purchase and sale of kerosene oil prior to the year 1972. All the petitioners have entered into a formal agreement with their respective oil companies in this regard. With a view of effective regulation of the kerosene oil and uniformity in price, the Government of India has issued Kerosene (Fixation of Selling Prices) Order 1970 (here-in-after referred to as Order). Clause 3 of the aforesaid order deals with the fixation of maximum selling price of kerosene. 2. The grievance of the petitioners is that in terms of clause 3 of the Order, the respondents have not fixed the maximum selling price of kerosene including the extraordinary expenditure which the dealers may have to incur under conditions and also the road transport charges taking into consideration any increase or decrease in transportation charges payable for the transportation of goods by the shortest routes. 3. Petitioners in the present writ petition have made the following substantive prayer:- "It is respectfully prayed that by an appropriate writ direction or order in the nature of mandamus commanding respondents No.1 to 3 to fix the selling price of kerosene oil in terms of clause 3 of the kerosene (Fixation of Ceiling Prices) Order 1970 and allow the petitioners the extraordinary expenditure incurred by the petitioners in terms of sub clause (c) (ii) of clause 3 of the said order; with a further writ direction or order in the nature of mandamus directing respondents No.1 to 3 to fix the transportation charges in terms of sub clause (d)(ii) of clause 3 of the said order and to include the charges so fixed while fixing the selling price under the order mentioned above; with a further writ, direction or order in the nature of mandamus directing the respondents to fix the selling price with effect from 1972 and give to the petitioners the benefit of the hike in transportation charges and the extraordinary expenditure from time to time for the payment whereof proper claims have already been made by the petitioners..." 4. Respondents in their counter have pleaded that respondents imposed a departmental premium @Rs.40/- per kilo litre, which was ultimately charged from the consumers by including the same in the sale price. Respondents in their counter have pleaded that respondents imposed a departmental premium @Rs.40/- per kilo litre, which was ultimately charged from the consumers by including the same in the sale price. It is stated that the amount charged from the consumers has been withheld by the petitioners even before filing of the writ petition and this amount is more than Rs.90 lacs. 5. The further case of respondents is that during the pendency of the writ petition, various orders have been passed by respondents fixing the sale price of kerosene and transportation charges including commission etc. 6. I have heard the learned counsel for the parties and perused the record. Under the Order, there is a statutory duty imposed upon respondents to fix the price of kerosene including the transportation charges. Respondents have taken a specific plea that during the pendency of this writ petition, various orders have been issued fixing the price of kerosene and transportation charges including the commission. However, no such order has been placed on record to enable this court to appreciate the contention raised by the learned counsel for respondents in this regard. When the respondents have not placed any such order on record, then it will be presumed that no such order has been passed by respondents. 7. Mr Salathia, learned AAG, appearing for respondents made a statement that petitioners firstly should deposit the premium which has been collected from the consumers amounting to Rs. 90 lacs before filing of the present writ petition and thereafter, respondents will fix the price. 8. I do not agree with the above contention raised by the learned AAG, appearing for respondents. Clause 3(ii)(d) of the Order imposes a statutory duty upon the respondents to fix the price of sale of kerosene and its transportation. Respondents, therefore, cannot put any such condition for fixing the price and commission etc. Similar proposition came up before Punjab and Haryana High Court in a Civil Writ Petition No.1401 of 1971, M/s Hazura Singh Gujjar Mal and others v. The State of Punjab and others, decided on 19th October71. In the above case, the respondents were directed to fix the prices and transportation charges in accordance with Clause 3 of the Order The said directions were not complied with. Petitioners in the above case again approached the court through Civil Writ petition No.980/1972, M/s Hazura Singh Gujjar Mal and Ors. In the above case, the respondents were directed to fix the prices and transportation charges in accordance with Clause 3 of the Order The said directions were not complied with. Petitioners in the above case again approached the court through Civil Writ petition No.980/1972, M/s Hazura Singh Gujjar Mal and Ors. v. State of Punjab and Ors., decided on 23rd May 72. The Punjab and Haryana High Court accepted the writ petition and fixed the prices itself. 9. The proposition as has been raised in the present petition was also considered by this court in OWP No.833/2000- M/s Behari Lal Som Nath and ors v. State of J&K and others, decided on 30th Sept04. In the said case, following directions were issued:- "This petition is accordingly allowed. Respondents are directed to fix transportation charges/freight for transportation of kerosene oil in accordance with GSR 864 dated 1.6.1970. Let transportation charges/freight be determined keeping in view the escalation with effect from 1991 till date for all the components noticed herein above with a period of four months from today. Respondents shall also consider and fix transportation charges with effect from 1992 on the basis of national price index and appropriate order be passed within aforesaid period." 10. In view of the above discussion, this petition is allowed. Respondents are directed to fix the sale price of kerosene alongwith the transportation charges, commission etc. w.e.f the date of filing of the writ petition in accordance with GSR 864 dt. Ist June70, within a period of four months from the date a copy of this order is made available to respondents by the petitioners. However, it is made clear that after fixing of the price of kerosene, transportation charges, Commission etc, the respondents would be at liberty to claim the premium, if any, from the petitioners. Writ petition disposed of accordingly.