Research › Search › Judgment

Orissa High Court · body

2012 DIGILAW 54 (ORI)

Chief Regional Manager (Retail) Hindustan Petroleum Corporation Ltd. v. Banamali Mishra

2012-01-30

B.N.MAHAPATRA, V.GOPALA GOWDA

body2012
JUDGMENT V. GOPALA GOWDA, C.J. - Correctness of the order dated 17.3.2010 passed by the learned Single Judge in W.P.(C) No.10850 of 2008 directing that if the petitioner-respondent No.1 complies with all formalities and is not disqualified to be appointed as wholesaler of SK Oil, he shall be appointed as such in respect of Kantabanji area within three months, has been challenged in this appeal, urging various legal grounds. 2. The first ground is that wholesaler is appointed under the Orissa Public Distribution System (Control) Order, 2008 (in short PDS Control Order, 2008) which means a dealer who stores and sells PDS commodities to another wholesaler or retailer and includes a sub-wholesaler or a storage agent. Further reliance is placed upon rule 2(c) of the PDS Control Order, 2008 wherein "agent wholesaler" of Oil Marketing Company has been defined, to mean a wholesaler 'appointed by an Oil Marketing Company to obtain Kerosene from such company for sale to retailers and/or sub-wholesalers under the PDS, Therefore, the appointing authority of the wholesaler for the purpose of SK Oil supplied either to another wholesaler or retailer including subwholesaler or storage agent is the Oil Marketing Company and the guidelines framed on 19.8.2003 in respect of selection of outlet dealers, are applicable. The basis on which the prayer is sought for in the writ petition, is the recommendation letter issued by the District Magistrate to the Chief Regional Manager (Retail) Hindustan Petroleum Corporation Limited, Orissa vide Annexure-4. Pursuant to such recommendation, Annexure-6 was issued by the Chief Regional Manager to the respondent No.1 with reference to the letter/recommendation addressed by the District Collector that the Oil Marketing Company follows the procedure laid down by the Ministry of Petroleum and Natural Gas in regard to appointment of any dealership for Retail Outlet, LPG or SKO Dealership. Any person can apply for the dealership only after seeing the advertisement published in the News paper where many informations are advertised. Please note letter from the Collector and District Magistrate cannot be considered for the appointment of SKO Dealership. Any person can apply for the dealership only after seeing the advertisement published in the News paper where many informations are advertised. Please note letter from the Collector and District Magistrate cannot be considered for the appointment of SKO Dealership. Reliance is placed upon rules, 3 4 & 6 of the PDS Control Order, 2008 which deal with the licensing of dealers, appointment of dealers and grant of licence and issue of licence under the PDS Order and do not speak of conferment of power on the District Magistrate who is the licensing authority under the provisions of the said Act for appointment of wholesaler. Therefore, in the absence of such power, appointment by the District Magistrate is void. Having regard to the undisputed fact that the SK Oil is a petroleum product which is an essential commodity, the Essential Commodities Act, 1955 is applicable and the order/recommendation issued by the District Magistrate under the PDS (Control) Order, 2008 framed by the State Government in exercise of its power under Section 3 of the Essential Commodities Act, 1955 (10 of 1955) read with paragraph-5 of the Annexure to the Public Distribution System (Control) Order, 2001, published in the Gazette of India, Extra-ordinary, Part II, Section 3, Sub-section (i), No.434 dated 31.8.2001 and the notification of Government of India, in the Agriculture and Irrigation (Department of Food), GSR 800, dated the 9th June, 1978, published in the Gazette of India, Extra-ordinary, Part II, Section 3, Sub-section (i) dated the 17th June, 1978 and the notifications of other Department, is illegal. The wholesaler can supply the PDS commodities along with SK Oil to another wholesaler or retailer including a Sub-wholesaler or storage agent in whose favour, he got the dealership. The retailer, wholesaler or sub-wholesaler are appointed by the oil company. This important aspect of the matter has not been considered by the learned Single Judge and the reasoning adopted in Annexure-6 informing the respondent No.1 is that the recommendation letter issued by the District Magistrate for his appointment as wholesaler, cannot be considered and any person can apply for the dealership as per the advertisement published in the newspaper. This important aspect of the matter has not been considered by the learned Single Judge and the reasoning adopted in Annexure-6 informing the respondent No.1 is that the recommendation letter issued by the District Magistrate for his appointment as wholesaler, cannot be considered and any person can apply for the dealership as per the advertisement published in the newspaper. Further reliance is placed on Annexure-A/3, the guideline for selection of retail outlet dealers and it is submitted that in absence of guidelines framed for the purpose of appointment of wholesaler or subwholesaler for the purpose of storage of the essential commodity namely, SK oil, the guidelines adopted for the retail outlet dealers, shall be applied for the purpose of appointment of such wholesalers. He has invited our attention to sub-clause (ii) of clause 1 and clause 2 of the guidelines for selection of the SKO-LDO (Superior Kerosene Oil-Light Diesel Oil) dealers and LPG distributors also. Therefore, he submits that the said guidelines are applicable. 3. Mr. Misra, learned counsel for the respondent No.1 rebutted the aforesaid contention and sought to justify the order impugned in this writ appeal placing reliance upon the Annexure 4, the recommendation made by the Collector, Bolangir to the Chief General Manager (Retail), HPCL, Orissa, Bhoinagar, Bhubaneswar for appointment of the respondent No.1 and others as wholesalers in different places mentioned in the said letter for the purpose of SK oil dealer licence against the existing vacancy in Bolangir district. He has questioned the correctness of Annexure-6, the letter dated 15.5.2008 issued by the Chief General Manager to the respondent No.1. He further submitted that the places either in the district, subdivision or talukwise where wholesalers are to be appointed having not been identified, the procedure adopted for appointment of wholesale dealer under the guidelines (supra) have no relevance and the same are not valid. Learned Single Judge has directed for appointment of respondent No.1 as wholesaler of SK Oil if he shall comply with all formalities and is not disqualified to be appointed as wholesaler of SK Oil. Therefore, the impugned order passed by the learned Single Judge is perfectly correct and the same does not call for interference. Learned Single Judge has directed for appointment of respondent No.1 as wholesaler of SK Oil if he shall comply with all formalities and is not disqualified to be appointed as wholesaler of SK Oil. Therefore, the impugned order passed by the learned Single Judge is perfectly correct and the same does not call for interference. Further learned counsel submitted that in absence of identification of number of wholesalers to be appointed by the oil company in the places either in the district, subdivision or talukwise, the impugned order cannot be found fault with and the same is required to be implemented by the appellant company and prayed for dismissal of the writ appeal. 4. With reference to the aforesaid rival contentions, the following points would arise for consideration : (i) whether the learned Single Judge is right in directing the appellant company for appointment of respondent No.1 as wholesaler of SK oil within three months and is it in accordance with the guidelines applicable to the selection of retail outlet dealers? (ii) whether the learned Single Judge is justified in giving direction for appointment of the respondent No.1 as a wholesaler for supply of the SK oil in the district? (iii) what order? 5. The aforesaid points are required to be answered in favour of the appellant-Corporation for the following reasons. 6. Mr. Mukherjee, learned counsel has rightly invited out attention to the definition of the "agent wholesaler" and "wholesaler" under sub-clause (c) & (s) of Section 2 of Orissa Public Distribution (Control) System Order, 2008 which are extracted hereunder : (c) "Agent Wholesaler" of Oil marketing company means a Wholesaler appointed by an Oil Marketing Company to obtain Kerosene from such company for sale to retailers and/or subwholesalers under the Public Distribution System; (s) "Wholesaler" means a dealer who stores and sells PDS commodities to another wholesaler or retailer, and includes a subwholesaler or a storage agent. 7. From the terms, "agent wholesaler" and "wholesaler" as defined in the aforesaid clauses of Orissa Public Distribution System (Control) Order, 2008, it appears that power is not conferred upon the licensing authority, namely, District Magistrate. Upon the District Magistrate power is conferred for appointment of dealers and granting licences since the SK oil is an essential commodity and is a petroleum product. Upon the District Magistrate power is conferred for appointment of dealers and granting licences since the SK oil is an essential commodity and is a petroleum product. For the purpose of appointment of an agent wholesaler to obtain kerosene from the State Government for sale to retailers and/or wholesalers under the PDS, the power is vested with the oil marketing company. In that regard, the respective oil companies have to identify in the State the places either in the district, subdivision or talukwise where wholesalers are to be appointed and appoint the wholesalers following certain conditions and approved guidelines for the purpose of supply of SK oil to the card holders through the retail dealers who has obtained licence under Section-4 of the PDS Control Order, 2008. In the absence of specific-guidelines for selection of either agent wholesaler or wholesaler as defined in the aforesaid clauses of the PDS Control Order and the guidelines, Annexure-A/3, are applicable to SKO LDO dealers and LPG distributors also. In this view of the matter, the guidelines for selection of retail outlet dealers required to be adopted and applied and further rightly placed reliance upon another office memorandum dated 9th October, 2000 of the Government of India, Ministry of Petroleum and Natural Gas by the learned counsel for the appellant wherein under Section 1 the eligibility criteria for dealers/ distributors etc. is specifically mentioned. Further under Section 2 the reservation for dealership/ distributorships for various categories are mentioned and at 2.1 it is stated as under : (i) Defence Personnel (DC) 8% (ii) Freedom Fighters (FF) 2% (iii) Open Category (O) 50% (iv) Outstanding Sports Persons (OSP) 2% (v) Paramilitary/Police/Govt. Personnel (PMP) 8% (vi) Physically Handicapped Persons (PH) 5% (vii) Scheduled Castes/Scheduled Tribes (SC/ST) 25%, Total 100% 8. Mr. Mukherjee further submits that the eligibility criteria of persons described in the office memorandum for the purpose of selection of retail outlet dealers of SKO LDO, is applicable for the purpose of appointment of agent wholesaler or wholesaler respectively. Therefore, the letter issued by the appellant-company vide Annexure-6 to the respondent No.1 on the recommendation made by the District Collector for the purpose of appointment of respondent No.1 as wholesaler for supply of SKO to the retailers or storage agent as well as supply of the same to the subwholesalers, is perfectly legal and valid. Therefore, the letter issued by the appellant-company vide Annexure-6 to the respondent No.1 on the recommendation made by the District Collector for the purpose of appointment of respondent No.1 as wholesaler for supply of SKO to the retailers or storage agent as well as supply of the same to the subwholesalers, is perfectly legal and valid. The prayer in the writ petition to quash Annexure-6 and direct the appellant- O.P. No.3-the Chief Regional Manager to issue the letter appointing the writ petitioner-respondent No.1 as one of the wholesalers of SK Oil for the District of Bolangir, is not tenable in law, Learned Single Judge erred in not applying the guidelines for the purpose of finding out as to whether the impugned letter issued under Annexure6 with reference to the recommendation made by the Bolangir District Collector for appointing the respondent No.1 herein as a wholesaler, is not legal and valid for the reason that they are required to identify number of dealers required either in the district, subdivision or talukwise and publish advertisement inviting applications from eligible persons under the guidelines, for the purpose of awarding wholesale dealership to the eligible persons by the selection committee, thereafter scrutinise their applications and the applicant who is found to be eligible for appointment from the categories mentioned in the memorandum of 2000 (supra) can be appointed as wholesaler or subwholesaler for the purpose of supplying the SKO in the district, subdivision or talukwise to the card holders through the retail dealers in whose favour the licensing authority grants license under the PDS Control Order. Therefore, the order of the learned Single Judge is contrary to the PDS Control Order and the guidelines (supra). Accordingly the appeal is allowed. The impugned order is set aside. We cannot given direction to the appellant and other oil companies who are supplying the SKO or Kerosene to the dealers/licencees from their respective company. They must identify number of wholesale dealers required in the district, subdivision or taluk level, take effective steps inviting applications from eligible persons by advertising in the daily newspapers which have got wide circulation in the respective areas in compliance with the guidelines and appoint such wholesalers or subwholesalers. If such advertisement is made, the respondent is at liberty to apply for the grant of wholesale or sub-wholesale dealership. With the above said observations, the writ appeal is disposed of. Appeal disposed of.