JUDGMENT Arun Mishra, C.J. 1. Various oil companies have filed the petition by way of Public Interest Litigation praying for the relief to the effect that no illegal sale of bio-diesel takes place within the State of West Bengal by any of the manufacturers of such bio-diesel. Further prayer has been made to prohibit the respondents from giving sanction to such illegal sale of bio-diesel. Petitioners, i.e. Indian Oil Corporation Limited, Hindustan Petroleum Corporation Limited and the Bharat Petroleum Corporation Limited are the companies duly registered under the Companies Act, 1956. They are involved in the marketing of the oil products. The Union of India has framed an Act being the Petroleum Act, containing provisions for a uniform practice of manufacturing, marketing and selling of different petroleum products. The respondent No. 1 through its Ministry of Petroleum & Natural Gas proposed a policy for use of bio-diesel to be consumed with the petroleum products. 2. It is averred in the petition that bio-diesel is an environmental friendly fuel, which has almost no sulphur, no aromatics, and has about 10% built in oxygen. It is safe to handle and the flash points of bio-diesel are higher than conventional diesel. Blending of bio-diesel with diesel would result in the reduction of un-brunt hydrocarbons, carbon monoxide and particulate matter in auto emissions and will be in the line with the objectives of the Auto Fuel Policy of the Government. 3. It is further averred that bio-diesel can be made from any feedstock oil or fat. The Ministry of Petroleum and Natural Gas adopted a policy inter alia for purchasing, marketing and use of bio-diesel as fuel. Copy of the said policy has been annexed as annexure "P-1" to the writ petition. 4. It is further averred by the petitioners that every manufacturers of the said bio-diesel cannot sell the same in open market their samples have to be approved and certified by the petitioners and they are required to be registered as authorized suppliers. Petitioners came to know that Calcutta Tram Company (CTC) has taken positive steps for the use of bio-diesel and entered into a Memorandum of Understanding for supply of the same with Emami Biotech Limited, the respondent No. 6, who has never got its samples approved and certified by the petitioners and got it registered as authorized supplier. Petitioners came to know that Calcutta Tram Company (CTC) has taken positive steps for the use of bio-diesel and entered into a Memorandum of Understanding for supply of the same with Emami Biotech Limited, the respondent No. 6, who has never got its samples approved and certified by the petitioners and got it registered as authorized supplier. The said samples failed while testing according to the procedure as provided in the Bio-diesel Purchase Policy. 5. The Government of India by a letter dated 22nd April, 2009 through its Joint Secretary, Ministry of Petroleum and Natural Gas, requested the State Government to take suitable steps to curb illegal marketing of bio-diesel for use as transportation fuel. Copy of the said letter has been filed as annexure "P-3" to the petition. The State Government in spite of the same kept mum on the subject and has not taken any step to prohibit such illegal sale in any manner whatsoever. The Excise Department had also not taken any step to prohibit the illegality. There is inaction on the part of the respondents. 6. Affidavit-in-opposition has been filed by the respondent No. 6, Imami Biotech Limited contending that in today's global situation use of bio-diesel is absolutely necessary to ensure pollution free environment, reduce carbon emission and it is highly recommended by the Pollution Control Board. It is further contended that bio-diesel can be used alone or mixed with any ratio with petroleum diesel fuel. The most common plan of mixing is 20% bio-diesel with 80% petroleum diesel as commonly known as B-20 for transport vehicle. For static engine 100% bio-diesel or commonly known as B-100 can be used. The use of the same is prompted by the Government of India. Emission level of different kinds of bio-diesel have been stated in the affidavit so as to point out that it is environmental friendly fuel. To popularize the bio-diesel, the Government has not levied excise duty on it. Custom duty has also been reduced in the year 2009-10. 7. It is also contended that the Joint Secretary in the memo dated 22nd April, 2009 has mentioned that Bio-diesel is being marketed unauthorizedly by some unscrupulous persons/firms in some States to be used as transportation fuel and referred to clause 3(5) read with clause 4 of the Motor Spirit & High Speed Diesel (Regulation of Supply, Distribution & Prevention of Malpractices) Order, 2005. 8. 8. Copies of the Memorandum and the Order of 2005 have been filed along with the affidavit-in-opposition. The term 'product' is defined in the definition clause 2(k) of the Order of 2005. 9. It is contended by the respondent No. 6 that by declaring Bio Diesel Purchase Policy, the Ministry of Petroleum & Natural Gas, Government of India imposes unreasonable restrictions on the manufacturers with regard to fixation of selling price, sale in other sectors, testing procedure etc. Therefore, the policy framed by the Ministry of Petroleum & Natural Gas lacks fairness. It is further contended by the respondent No. 6 that the testing procedure should be fair, transparent and time bound so as to not cause unnecessary hardship and financial loss to the bio-diesel manufacturers. 10. It is also contended by Respondent No. 6 that vide letter dated 19th March, 2009, the respondent No. 6 was communicated that the sample of bio-diesel collected on 24th January, 2009 is not meeting the required specifications. The respondent No. 6 submitted in this regard that bio-diesel was produced on 3rd week of September, 2008 and the sample was picked up on 24th January, 2009 whereas the report was given on 5th March, 2009. Under such circumstances, it is clear that there was a manufactory process parameter valued as noted in the letter dated 19th March, 2009. Further it has got its bio-diesel tested with independent agency namely SGS India Pvt. Ltd. and report dated 14th October, 2008 was given by them is at par with industrial standard parameters. The restrictions imposed specially in clause 3(5) of Control Order 2005 are unreasonable, arbitrary, discriminatory and unfair. For selling the bio-diesel to third party, CTC, respondent No. 6 approached the petitioners for getting sample approved. CTC got the sample tested before purchase. It is preposterous to suggest that each and every sample should be tested through the petitioners so as to make it marketable to authorized party. 11. Sri S. Talukdar, learned senior counsel appearing on behalf of the petitioners submitted that the Order of 2005 has been violated inasmuch as the product was sold to CTC by the respondent No. 6. In spite of communication issued by the Joint Secretary, Ministry of Petroleum and Natural Gas, no action had been taken by the concerned officials of the West Bengal. In spite of communication issued by the Joint Secretary, Ministry of Petroleum and Natural Gas, no action had been taken by the concerned officials of the West Bengal. The violation of order of 2005 is punishable under section 7 read with section 3 of the Essential Commodities Act. 12. Learned senior counsel has also taken us to the various provisions contained in the Order of 2005 so as to contend that the transaction with the CTC was illegal and not permissible and the requisite action has not been taken by the concerned officials of the State of West Bengal. The CTC is run by the State of West Bengal. By purchasing the product from the respondent No. 6, the authorities themselves have committed violation of the provisions of the Essential Commodities Act, whereas it was incumbent upon them to prevent the breach of the Control Order 2005. 13. Sri Bose, learned senior counsel appearing on behalf of the respondent No. 6 submitted that there was no violation of the provisions contained in the Order of 2005. They are no more selling their product to the CTC in view of the communication, which has been received by the State of West Bengal from the Joint Secretary, Ministry of Petroleum and Natural Gas dated 22nd April, 2009. It was submitted that prohibition in the Control Order, 2005 is with respect to the fuel to be used in any type of automobile vehicle. Since they have stopped the supply to CTC, it cannot be said that they are committing any violation of the provisions. 14. Learned senior counsel has also relied upon the Policy framed for the purpose of promotion of bio-diesel purchase by the Ministry of Petroleum and Natural Gas, Government of India. His submission is that though oil companies have been given the right to purchase bio-diesel and to mix it the policy does not contain any prohibition, not to mix it when they are selling their products in other manner not prohibited in the order of 2005. Thus, the respondent No. 6 is presently acting as per Policy and is not violating any of the provisions of the Policy. 15. Before dilating the various submissions raised by the learned counsel for the parties it is necessary to consider the various provisions contained in the Order of 2005. Thus, the respondent No. 6 is presently acting as per Policy and is not violating any of the provisions of the Policy. 15. Before dilating the various submissions raised by the learned counsel for the parties it is necessary to consider the various provisions contained in the Order of 2005. The Order of 2005 has been issued by the Ministry of Petroleum & Natural Gas on 19th December, 2005 in exercise of the powers conferred by section 3 of the Essential Commodities Act, 1955 and in suppression of Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) Order, 1988. It extends to the whole of India and came into force on the date of its publication in the Official Gazette. 16. "High speed diesel" has been defined in clause 2(e), "Motor spirit" in clause 2(g), "Petroleum" in clause 2(i), "product" in clause 2(k), "unauthorized purchase" in clause 2(p), "unauthorized sale" in clause 2(q), "unauthorized possession" is defined in clause 2(r). 17. The aforesaid clauses containing definitions are quoted below:- 2(e) "high speed diesel" means any hydrocarbon oil, excluding mineral colza oil and turpentine substitute, which meets the requirements of Bureau of India Standards specification number IS 1460; 2(g) "motor spirits" means any hydrocarbon oil, excluding crude mineral oil, which meets the requirements of Bureau of Indian Standards specification number IS 2796; 2(i) "petroleum" shall have the meaning assigned to it in the Petroleum Act, 1934; 2(k) "product" means motor spirit and high speed diesel; 2(p) "unauthorized purchase" means purchase of the product from sources other than those authorized by the oil companies; 2(q) "unauthorized sale" means sale of product by a dealer or consumer to another dealer or consumer or to any other person in contravention of the directive issued for the purpose by the State Government or the oil companies or in contravention of any provision of this order; 2(r) "unauthorized possession" means keeping of motor spirit or high speed diesel or any petroleum product or its mixture, in contravention of the provisions of this order, under the control of dealer or any other person without valid sales documents issued by the concerned oil company; 18. The 'product', which is covered under the Order of 2005 means 'motor spirit' and 'high-speed diesel'. 'Unauthorized purchase' means purchase of product from sources other than those authorized by the oil companies. The 'product', which is covered under the Order of 2005 means 'motor spirit' and 'high-speed diesel'. 'Unauthorized purchase' means purchase of product from sources other than those authorized by the oil companies. The 'unauthorized sale' means sale of the product as specified in section 2(q) in contravention of the directive issued for the purpose by the State Government or the oil companies or in contravention of any provision of the order 2005. 19. 'High speed diesel' means any hydrocarbon oil excluding mineral colza oil as specified in clause 2(e). Motor spirit also means hydrocarbon excluding crude mineral oil. High speed diesel as well as motor spirit have to meet the requirements of Bureau of Indian standards specification number IS 1460 and IS 2796 respectively. 20. The product supply and transportation is dealt within the clause 3(i) of the Order of 2005. Clauses 3(1) to 3(3) deal the safeguards how the transportation has to be made by the transporter and duty of dealer and consumer. Clause 3(4) of the order of 2005 provides no person other than the dealer or Oil Company shall be engaged in the business of selling product. Clause 3(5) provides no person shall sell or agree to sell any petroleum product or its mixture other than motor spirit or high speed diesel or any other fuel authorized by the Central Government in any form, under any name, brand or nomenclature, which can be and is meant to be used as fuel in any type of automobile vehicles fitted with spark ignition engines or compression ignition engines. The relevant clauses 3(4) and 3(5) are quoted below:- Clause 3(4): No person other than the dealer or oil company shall be engaged in the business of selling product; Clause 3(5): provides no person shall sell or agree to sell any petroleum product or its mixture other than motor spirit or high speed diesel or any other fuel authorized by the Central Government in any form, under any name, brand or nomenclature, which can be and is meant to be used as fuel in any type of automobile vehicles fitted with spark ignition engines or compression ignition engines. 21. Clause 3(6) provides no dealer, transporter, consumer or any other person shall indulge in any manner in any one or more of the malpractices. 21. Clause 3(6) provides no dealer, transporter, consumer or any other person shall indulge in any manner in any one or more of the malpractices. Malpractices has been defined in clause 2(f) - adulteration, pilferage, unauthorized exchange, unauthorized purchase, unauthorized sale, unauthorized possession, over-charging, sale of off specification product and short delivery. Clause 3(7) provides the delivery or sale of motor spirit and high-speed diesel shall be made by a dealer of oil company only from authorised retail pump outlet. Clause 5 deals with grant of authorization to market motor spirit and high speed diesel. Authorization has to be issued on an application to be submitted to the Central Government in the prescribed form. 22. Clause 6 of the order of 2005 enables the Central Government to issue an order to make it mandatory to supply motor spirit and high speed diesel blended with a specified quantity of anhydrous ethanol and/or bio-diesel in the whole or any part of the territory of a State or whole of the territory of Union of India. Other power of search and seizure, sampling of product, issue directions are also contained in the Order of 2005. 23. It is apparent that Clause 3(5) provides in unequivocal term that no person shall sell or agree to sell any petroleum product or its mixture other than motor spirit or high speed diesel or any other fuel authorised by the Central Government in any form, under any name, brand or nomenclature, which can be and is meant to be used as fuel in any type of automobile vehicles fitted with spark ignition engines or compression ignition engines. It is not disputed that buses run by CTC are type of automobile vehicles fitted with spark ignition engines or compression ignition engines as defined in Clause 3(5). Thus the sale made to the CTC by the respondent No. 6 was clearly in violation of the Control Order of 2005 and is punishable under section 7 read with section 3 of the Essential Commodities Act. Thus the sale made to the CTC by the respondent No. 6 was clearly in violation of the Control Order of 2005 and is punishable under section 7 read with section 3 of the Essential Commodities Act. It is not disputed on fact that 80% of the petroleum product was mixed with 20% of bio-diesel for the purpose of sale to CTC and selling of such mixture of petroleum product meaning thereby mixture of motor spirit and high speed diesel with any other products other than motor spirit and high speed diesel or other fuel is not permissible unless it is authorised by the Central Government, particularly when it can be for the use and is meant to be used as fuel in any type of automobile vehicles. Such mixture could not have been sold to CTC for running vehicles. 24. Bio-diesel purchase policy has also been referred to by the learned Senior Counsel appearing on behalf of the respondent No. 6. No doubt about it that bio-diesel is environmental friendly fuel and can be made from any feedstock oil or fat. Paragraph 2.2 of the said policy mentions that independent Research and Development efforts carried out in the transportation sector have already established that bio-diesel blended in diesel up to a blend of 20% requires no modification in engine specifications when used as transportation fuel. Therefore, on part of oil marketing companies, there is no technical difficulty in blending bio-diesel in diesel and marketing such fuel immediately provided sufficient quantities of bio-diesel become available at a price so that the oil marketing companies do not incur loss in diversifying into marketing of the bio-diesel blended fuel. Bio-diesel Purchase Policy contains in paragraph 4 that bio-diesel offered for blending in diesel is to be of standard quality. Therefore, it would be necessary that only those bio-diesel manufacturers who get their samples approved and certified by the oil companies and get registered as authorised suppliers would be eligible for assured purchase of the product. 25. Paragraph 4.2(i) of the said Policy provides that public sector oil marketing companies shall purchase, through its select purchase centres, bio-diesel (B 100) which meet the fuel quality standard prescribed in the Bureau of Industrial Standards specification formulated vide PCD 3 (2242) C-dated 26.7.2004 and as such may be notified and modified from time to time. 26. 25. Paragraph 4.2(i) of the said Policy provides that public sector oil marketing companies shall purchase, through its select purchase centres, bio-diesel (B 100) which meet the fuel quality standard prescribed in the Bureau of Industrial Standards specification formulated vide PCD 3 (2242) C-dated 26.7.2004 and as such may be notified and modified from time to time. 26. The policy in short deals with purchase to be made by the oil companies for bio-diesel to be used after mixing for the purpose of automobile vehicles. It is nowhere provided in the said Policy that the respondent No. 6 can use it for the aforesaid purpose after mixing it. The provisions are to be read subject to the order of 2005. The order of 2005 is nowhere sought to be diluted in any manner by the policy nor policy decision could have diluted the statutory Control Order of 2005 issued under the Essential Commodities Act. Nor any such attempt has been made in the policy. By mere fact that no restriction has been carved out in the Policy, it cannot mean to authorise the respondent No. 6 to sell or to transact its business which may be in any manner violative of provisions contained in the Order of 2005. Malpractices have been defined in Clause 2(f) of the Order of 2005. The malpractices as envisaged in the aforesaid Order of 2005 has been committed read with Clause 3(5) of the Order of 2005. 27. Thus, it was incumbent upon the concerned authorities of the Government of West Bengal to take care of the situation to implement the order of 2005. On the other hand, they themselves committed violation of the provisions of the Order of 2005 by entering into purchase transaction with the respondent No. 6. Thus for violation of the aforesaid provisions, let appropriate proceeding be registered and taken to the logical conclusion. 28. In case any impermissible mixing as contemplated in Clause 3(5) of the Order of 2005 has been done or any other malpractices envisaged in the definition of malpractices in Clause 2(f) of the Order of 2005 has been committed, let appropriate action be taken in accordance with law. 29. 28. In case any impermissible mixing as contemplated in Clause 3(5) of the Order of 2005 has been done or any other malpractices envisaged in the definition of malpractices in Clause 2(f) of the Order of 2005 has been committed, let appropriate action be taken in accordance with law. 29. Thus, we have no hesitation to allow the writ petition to the aforesaid extent and we hold that purchase made by CTC was illegal and violative of the provisions of the Order of 2005 read with sections 7 and 3 of the Essential Commodities Act. Since supply has already been stopped with effect from 2009 as stated at the Bar, no sale or any other transaction can be made by the respondent No. 6 which may be violative of the provisions contained in the Control Order of 2005. We also direct that let appropriate action be taken for violation of the order in accordance with law as expeditiously as possible. 30. Authorities of the Government of West Bengal are also directed to ensure that provisions contained in the Control Order of 2005 are strictly observed by all concerned and no violation takes place in the State of West Bengal. 31. The writ petition being W.P. 118(W) of 2010 is, thus, allowed with aforesaid directions. Parties to bear their own costs. Urgent photostat certified copy of this order, if applied for, be furnished on priority basis. I agree. Petition allowed