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2012 DIGILAW 454 (JK)

Mohd. Amin Dar v. State & Ors.

2012-07-26

HASNAIN MASSODI, M.M.KUMAR

body2012
1. Appellant is employed as salesman in SS Cooperative Society, Trehgam. The society runs a kerosene sales outlet and is allotted kerosene oil by the department of Consumer Affairs and Public Distribution for onward supply and sale to 500 households/rationees of Awoora-A, Trehgam. 2. Respondent, no. 3 on 29-10-2009 issued licence no. CAPD/Plan/K-Oil/112/09 in favour of one Zareefa Samad daughter of Abdul Samad resident of Tikker, Kupwara — respondent no. 5 herein, and attached 750 house-holds/rationees of the area with her licence. 3. The petitioner questioned the licence granted to respondent no. 5 in OWP no. 1086/2009 on the ground that Nazir Ahmad granted kerosene licence by respondent no. 3 for Awoora-B, Zeiba Akhter engaged as sales woman in SS Tikker and respondent no. 5 are members of the same family and in terms of J&K Kerosene Control and Licencing Order 1974 and the guidelines issued from to time, it is not permissible to grant more than one kerosene licence to members of the same family. It was also pleaded that the licence granted to respondent no. 5 in violation of government order no. 49-FST of 1997 dated 11-3-1997. 4. The writ court on consideration did not find any merit in the writ petition. The writ court was of the opinion that respondent no. 3 acted within his powers as available under J&K Kerosene Control and Licencing Order 1974 and the guidelines issued from to time while granting licence to respondent no. 5. 5. The writ petition was accordingly dismissed along with identical writ petitions on 16.11.2011. 6. The appellant questions writ court order in the letters patent appeal on hand on the grounds set out in the memorandum of appeal. 7. We have gone through the appeal as also the writ record and have heard counsel for the parties. 8. 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. 9. 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. 9. 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. 10. 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 elated 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/retionees attached to a kerosene licence. 11. 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. 12. It does not fix a minimum of households/retionees attached to a kerosene licence. 11. 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. 12. 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 or 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. 13. 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. 14. 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. 15. However, government order of 2010 may not be applicable to the appellant's case, as the said order applies only to fresh licences. 15. The writ petition was also liable to be dismissed on the ground that the petitioner had no locus standi to file the writ petition. It is pertinent to point out that the department of Consumer Affairs and Public Distribution supplied kerosene oil to SS Cooperative Society Trehgam for its onward distribution to 500 house-holds/rationees of Awoora-A. In the said background if the kerosene licence granted to respondent no. 5 affected the area of operation of the society, the society had a right to come before the court with a petition assailing the kerosene licence granted to respondent no. 5. The appellant as an employee of the society was not clothed with such a right and is not even competent to prefer and maintain present appeal. 16. The writ court for the reasons discussed has rightly held that none of the appellant's rights was violated by issuance of kerosene oil licence 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 respondent and curtailing the households allotted to the appellant. 17. Viewed thus, the appeal is held to be meritless and accordingly dismissed.