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2013 DIGILAW 1262 (PAT)

HAJARILAL BAIDYANATH PRASAD v. STATE OF BIHAR

2013-10-28

JAYANANDAN SINGH

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ORDER : JAYANANDAN SINGH, J. 1. The lis in these two writ applications has arisen from the order of the Principal Secretary, Department of Food and Consumer Protection, Govt. of Bihar, contained in letter no.4547 dated 20.7.2012, by which all the Collectors of the State were directed to see that all the wholesale dealers of the Indian Oil Corporation, who were having licence for running petrol pump and were also having licence to deal with wholesale business of Kerosene Oil in the same premises, should shift their business premises beyond 2 kilometers from each other. This letter was issued in the wake of an incident of adulteration of petrol and diesel with kerosene oil by one of such dealers of Bhagalpur. 2. Pursuant to this letter of the Principal Secretary, petitioners were communicated by the Senior Divisional Retail Sales Manager of the Indian Oil Corporation, vide letter dated 25.7.2012, to shift their Superior Kerosene Oil (SKO) Agency to a suitable place at least 2 kms away from the Petroleum retail outlet premises. Petitioners also received a letter from the Collector of the District dated 17.10.2012 directing them to shift their business premises of kerosene dealership to at least 2 kms. away from the premises of petrol pump, failing which steps were to be taken to cancel their NOC for storage of kerosene oil. 3. Learned senior counsel for the petitioners submits that the storage licence of superior kerosene oil was issued to the petitioners under the provisions of Bihar Trade Articles (Licences Unification) Order, 1984 (hereinafter referred to as 'Unification Order'. Similarly, dealership licence of petroleum products was issued to the petitioners under Bihar Motor Spirit and High Speed Diesel Oil Dealers Licensing Order, 1996. He submits that applications were submitted by the petitioners in the forms prescribed in which petitioners were required to mention the proposed place of their business and other particulars. After considering the information supplied by the petitioners in their applications in the prescribed format, licences were granted to them to run their business at the place indicated in the application. He submits that the terms and conditions of the licences of the petitioners can therefore be varied by respondents only in exercise of their powers under the provisions of Unification Order and not otherwise. He submits that the terms and conditions of the licences of the petitioners can therefore be varied by respondents only in exercise of their powers under the provisions of Unification Order and not otherwise. He refers to clause (9) of the Unification Order which gives the Licensing Authority power of addition or alteration to the existing licence. He submits that earlier licensing authority had power to alter the conditions of existing licence either on the application of the licensee or suo motu, but later on, by the amendment, the word 'suo motu' has been deleted. Thus, under this clause, terms and conditions of the licence can be altered or changed only on the application of the licensee and not otherwise. He submits that this provision has been inserted in the Unification Order due to the reason that on account of various exigencies a licensee may require some changes in the original licence in respect of running of business, location etc. of their business. He submits that the letter of the Principal Secretary, which is at best an executive instruction, amounts to varying the conditions of licence for which he has no authority. In support of this, he placed reliance on an order of a learned single Judge of this Court dated 9.5.2003 passed in C.W.J.C. No.9944 of 2002. He submits that in that case also question of revocation of licence of a wholesale kerosene oil dealership issued under the Unification Order was under challenge. This Court after examining the legal position and after noticing judgment of the Apex Court held that "the provisions of a statutory licensing order cannot be supplanted by executive instructions". In this regard, learned senior counsel further placed reliance on a Full Bench judgment of Ranchi Bench of this Court in the case of Ashok Kumar Agrawalla v. State of Bihar, 1996(2) BLJR 1257 , wherein he pointed out that Clauses (9) and (10) of the Unification Order were considered and it was noticed that 'suo motu' expression has been deleted from clause (9). He further referred to a judgment of the Apex Court in the case of State of U.P. v. Daulat Ram Gupta, AIR 2002 SC 1363, in support of his contention and pointed out that, placing reliance of this judgment of the Apex Court, learned single Judge in C.W.J.C. No.9944 of 2002 had passed orders with the said findings. 4. He further referred to a judgment of the Apex Court in the case of State of U.P. v. Daulat Ram Gupta, AIR 2002 SC 1363, in support of his contention and pointed out that, placing reliance of this judgment of the Apex Court, learned single Judge in C.W.J.C. No.9944 of 2002 had passed orders with the said findings. 4. Counter affidavit and supplementary counter affidavit have been filed in this case on behalf of respondent nos. 1 to 3. Learned counsel for the respondents has referred to paragraph 8 of the supplementary counter affidavit and has pointed out that due to rampant mixing of kerosene oil in petrol and diesel, giving rise to serious problems of pollution, a PIL was filed in this Court in C.W.J.C. No. 9347 of 2012. He submitted that in that case this Court had directed the respondents to launch campaign against the vendors who habitually mix kerosene oil which cause high pollution. He also submitted that the order was passed by the Principal Secretary under the provisions of Clause (25) of the Unification Order. 5. Learned senior counsel for the petitioners, in reply, submits that clause (25) of the Unification Order was not applicable in the case as it empowered the State Government or the Collector or the Licensing Authority to issue directions to any dealer with regard to purchase, sale, disposal, storage or exhibition of the price and stock list of all or any of the trade articles. He submits that the directions in terms of Clause (25) can be issued only within the four corners of the licence and in terms of its conditions. Any direction, purportedly issued under this Clause, amounting to change of any terms and conditions of the licence would therefore be beyond the jurisdiction of the State Government or the Collector or the Licensing Authority. He further submits that the Principal Secretary has not issued the impugned letter on behalf of the Government. His letter shows that it was issued by him from his own level. He further submits that as per sub-section (cc) of Section 2 read with sub-section (5) of section 3 of the Essential Commodities Act, 1955, any general order has to be published in the official gazette to make it operative. He submits that in any case letter of the Principal Secretary was general in nature. He further submits that as per sub-section (cc) of Section 2 read with sub-section (5) of section 3 of the Essential Commodities Act, 1955, any general order has to be published in the official gazette to make it operative. He submits that in any case letter of the Principal Secretary was general in nature. Hence, even if it is assumed that the same was on behalf of the Government, the same had to be published in the official gazette before it could be enforced. 6. After having heard learned counsels for the parties and having considered the legal provisions, this Court finds that though clause 25 of the Unification Order was not brought to the notice of learned single Judge in C.W.J.C.No.9944 of 2002, but the same does not improve the case of the respondents. Clause (25) of the Unification Order reads as follows :- "25. Power to issue directions to dealers. - The State Government or the Collector or the Licensing Authority may issue directions to any dealer with regard to purchase, sale, disposal, storage or exhibition of the price and stock list of all or any of the trade articles." 7. Language of Clause (25) clearly shows that it empowers the Government to issue certain guidelines or instruction to the licensee in course of conduct of business. The use of the word 'storage' cannot come in the aid of the respondents as by no stretch of imagination that can be inferred to include place of business. 8. Learned senior counsel for the petitioners has rightly pointed out that at the initial stage itself when any person submits an application for licence, the same has to be furnished in the form prescribed, which contains a column for place of business. It is not disputed that on receipt of an application, Licensing Authority gets an enquiry held with regard to information supplied by the applicant in the form, including in respect of proposed place of business and after being satisfied with the same only passes orders for issue of licence. Hence, place of business also becomes one of the terms and conditions of the licence. 9. Hence, place of business also becomes one of the terms and conditions of the licence. 9. In the circumstances, if an order is issued by the State Government or the Collector or the Licensing Authority under the provisions of the said Clause (25) of the Unification Order, directing the licensee to change the place of business, the same has to be treated as amounting to change of conditions of licence and not a direction to the licensee in respect of his conduct of business. After deletion of the expression 'suo motu' from clause (9), it is clear that the Licensing Authority has no suo motu powers to direct the licensee to change his place of business which may amount to change of terms and conditions of licence. The amendment in the clause makes it clear that now it is only on the application of the licensee that the terms and conditions of the existing and operative licence can be changed. This aspect has been made clear by the learned single Judge of this Court also in C.W.J.C. No. 9944 of 2002. 10. In the circumstances, this Court finds that the letter of the Principal Secretary dated 20.7.2012 containing directions for change of business premises by the wholesale kerosene dealers 2 kms away from their out of petrol and diesel running under the licence issued under Bihar Motor Spirit and High Speed Diesel Oil Dealers Licensing Order, 1996 is without jurisdiction. Subsequent letters issued on behalf of the Oil Corporation and the Collector, which were issued solely on the direction of the Principal Secretary are also without jurisdiction. All the three letters (Annexure- 4, 5 and 6 in C.W.J.C. No. 21846 of 2012 and Annexure- 5, 6 and 7 in C.W.J.C. No.21901 of 2012) are therefore quashed. 11. Both the writ applications are accordingly allowed.