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2012 DIGILAW 451 (JK)

Ali Mohd. Bhat v. State & Ors.

2012-07-25

HASNAIN MASSODI, M.M.KUMAR

body2012
1. The appellant was on 3.4.2000 granted licence by the competent authority to run a kerosene retail outlet at Diver, Inderbugh, tehsil and district Kupwara. The licence was valid for period 3-4-2000 to 1-5-2001 and thereafter renewed on year-to-year basis and is effective as on date. 2. The appellant claims that at the time of grant of licence, he was allotted 1150 households. In other words the appellant was to supply kerosene oil to 1150 rationees/households of Diver, Inderbugh. However, the competent authority on 31-1-2001 granted kerosene licence to one Mohammad Yousuf Ganai authorizing him to run a kerosene retail outlet at the same village i.e. Diver, Inderbugh. Shri Ganai was allotted 300 out of 1150 households earlier allotted to the appellant. 3. The competent authority on 4-12-2010 issued yet another kerosene licence in favour of one Nizam ud Din Mir authorizing him to run a kerosene retail out at Diver, Lolab, district Kupwara. Shri Mir has been allotted 600 households. The appellant is therefore left with 250 households. 4. The appellant aggrieved with the action of the competent authority in issuing kerosene licence to Nizam ud Din Mir, filed a writ petition registered as OWP no. 884/2010 and sought quashment of licence no. DCAPDK/S/K/K.Oil/2010/Kupwara/01 dated 4-12-2010 issued in favour of Nizam ud Din Mir, respondent no. 5 in the petition. 5. The appellant's case was that the respondents 1 to 4 by issuing kerosene licence in favour of respondent no. 5 and allotting 600 households to respondent no. 5 had in effect pusued the appellant out of the business. The appellant contended that he was an unemployed youth and that he would not be able to run the business with the reduced number of rationees/households. 6. The writ court did not find any merit in the writ petition. The writ court observed that the kerosene licence granted to the appellant did not confer any right on the appellant to supply kerosene oil to a fixed number of households and that respondents 1 to 4 were within their rights to regulate grant of kerosene licence and the conditions subject to which the licence was granted. 7. The writ court observed that the kerosene licence granted to the appellant did not confer any right on the appellant to supply kerosene oil to a fixed number of households and that respondents 1 to 4 were within their rights to regulate grant of kerosene licence and the conditions subject to which the licence was granted. 7. The writ court judgment dated 16-10-2011 is questioned in the present Letters Patent Appeal on the grounds that the court failed to appreciate that the appellant's area of operation had been curtailed while issuing impugned kerosene licence in favour of Shri Nizam ud Din Mir without affording the appellant an opportunity of being heard and that the decision taken was violative of principles of natural justice. The writ court is also said to have not noticed that the grant of fresh licence to Shri Mir had infringed appellant's right to pursue trade and commerce guaranteed under constitution of India. 8. It is insisted that the official respondents lacked power to vary or curtail the area of operation fixed in the licence granted to the appellant and that the impugned action was without authority or backing of any rules or guidelines. 9. We have gone through the appeal as also the writ record and have heard counsel for the parties. 10. The state government in exercise of powers available under Essential Commodities Act has issued J&K Kerosene Control and Licencing Order 1974. It authorizes the government to regularize the sale and storage of kerosene oil within the state. The competent authority in terms of the government order is clothed with the power to issue licence authorizing sale and storage of kerosene and also lay down conditions subject to which the business in kerosene is to be conducted by the licencee. 11. The state government to streamline distribution of kerosene oil in the state under Public Distribution System has laid down guidelines from time to time governing issuance of kerosene licence within the framework of J&K Kerosene Control and Licencing Order 1974. The effort has been to ensure availability of kerosene to the consumers in every nook and corner of the state and to further ensure that the consumer is not compelled to cover long distances to reach the kerosene retail outlet. 12. The government order no. 49-FST of 1997 dated 11-3-1997 embodies the guidelines to be observed while granting kerosene licence. The effort has been to ensure availability of kerosene to the consumers in every nook and corner of the state and to further ensure that the consumer is not compelled to cover long distances to reach the kerosene retail outlet. 12. The government order no. 49-FST of 1997 dated 11-3-1997 embodies the guidelines to be observed while granting kerosene licence. In terms of the government order the area of operation of a licencee in urban areas is to extend to a minimum of 500 households and in rural areas to 800 households. The state government in the year 2005 vide order no. 130-CA&PD of 2005 dated 19.4.2005.modified the government order no. 49-FST of 1997 dated 11-3-1997 and curtailed the minimum area of operation to 250 households in urban as well as rural areas. The government order dated 19-04-2005 was a step forward in state government's commitment to ensure that kerosene oil was distributed to the consumers in a smooth and hassle free manner. However, in 2010 another government order vide no. 75-CAPD of 2010 dated 27-10-2010 was issued that superseded all previous orders and laid down new guidelines for grant of new licences within the framework of J&K Control and Licensing Order 1974. It does not fix a minimum of households/rationees attached to a kerosene licence. 13. The licencing authority has issued fresh licences in areas where the licence holders in terms of licence granted to them had to cater to the requirements of a large number of consumers. The appellant in terms of the kerosene licence issued in his favaour was to initially supply kerosene oil to 1150 households. The number of households was slashed to 850 after a second kerosene oil licence in Diver, Indurbugh village was granted to Shri Mohammad Yousuf Ganai. The allotment of 600 households to Nizam ud Din Mir has further reduced the appellant's share to 250 households. 14. The minimum number of households for a kerosene licence prescribed in terms of government order dated 19.04.2005 is, therefore, maintained in case of the appellant. The appellant cannot have any grievance as regards issuance of kerosene licence in favour of Shri Nizam ud Din Mir. 15. 14. The minimum number of households for a kerosene licence prescribed in terms of government order dated 19.04.2005 is, therefore, maintained in case of the appellant. The appellant cannot have any grievance as regards issuance of kerosene licence in favour of Shri Nizam ud Din Mir. 15. There is no substance in the argument advanced by the learned counsel for the appellant that the official respondents lacked authority to vary and modify the number of households allotted to a kerosene licence holder of that the kerosene licence holder has a right to supply kerosene to the number of households initially indicated in the kerosene licence granted in his favour. The kerosene oil is a controlled commodity and the government in order to streamline its distribution and ensure its availability to every consumer in a hassle-free manner is vested with the authority under J&K Kerosene Control and Licencing Order 1974 to regulate its trade. The licencing authority is therefore, within its powers to modify or reduce the number of households allotted to the kerosene dealer to achieve the stated object. 16. There may be cases where a single kerosene licence was issued for a revenue village comprising of a large number of scattered hamlets. The licencing authority would be justified in issuing a fresh kerosene licence so that the rationees from far off hamlets of the revenue village are saved the hassle of covering long distances to get a few litres of kerosene. In such a case the distance between the hamlets rather than the number of rationees would be important to guide the issuance of fresh kerosene oil licence. However, the number of households or rationees can be reduced only as long as the minimum number of 250 households in terms of government order dated 19-04-2005 is maintained. 17. The government order no. 75-CAPD of 2010 dated 27-10-2010 has removed the bar of minimum households laid down in the government orders of 1997 and 2005. The order dated 27/10/2010 without prescribing a minimum of households attached to a kerosene licence requires the licencing authority to clearly define the area of operation of the licence and the rationees attached thereto. However, government order of 2010 may not be applicable to the appellant's case, as the said order applies only to fresh licences. Be that as it may, in the present case, as is made clear by Mr. However, government order of 2010 may not be applicable to the appellant's case, as the said order applies only to fresh licences. Be that as it may, in the present case, as is made clear by Mr. Shah Amir, GA, the minimum number of rationees i.e. 250 attached to the appellant's kerosene licence is intact and has not been reduced so as to give the appellant an occasion to feel aggrieved with the kerosene oil licence issued in favour of the private respondent. 18. The writ court for the reasons discussed has rightly held that none of the appellant's rights was violated by issuance of kerosene oil in favour of the private respondent and further that the licencing authority acted within its powers available under J&K Kerosene Control and Licencing Order 1974 while issuing the licence to the private respondents and curtailing the households allotted to the appellant. 19. Viewed thus, the appeal is held to be meritless and accordingly dismissed.