KARNATAKA KEROSENE RETAIL DEALERS Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) KEROSENE is an essential commodity and like food grains, sugar etc. , it is distributed from licenced fair price depots throughout the State of karnataka. The grant of licences for distribution of these commodities is regulated by the Karnataka essential commodities licensing Order, 1986, which envisages a 3 tier system of distribution viz. , wholesale dealers, retail dealers and hawkers. The wholesale dealers are entitled to sell one or more of the essential commodities specified in the schedule to other dealers or to bulk consumers whereas a retail dealer is a person who is not a wholesale dealer but is authorised to trade in articles mentioned in the said schedule. A hawker on the other hand is a person, who carries kerosene from place to place for sale to persons other than a dealer. The authorities, it appears, noticed that retail kerosene licensees were selling kerosene by engaging hawkers and bullock carts, which was against the policy of issuing retail licences. It was felt that persons or societies, who had obtained retail licence should carry on their business only in their shop during the prescribed working hours, which the retail dealers were not doing. A circular was accordingly issued on the 7th of october, 1993 by the joint director, pds of the department of food and supplies, bangalore, instructing the deputy directors 'in bangalore informal rationing area to issue notices to all such retail licensees as were selling kerosene by engaging hawkers and bullock carts directing them to effect the sales from their licenced premises, failing which proposing to take action by way of cancellation of their licences. Pursuant to the said directions, the deputy directors appear to have issued certain notices to some of the retail licensees, who were found to be indulging in the sale of kerosene by engaging hawkers or bullock carts instead of doing their business from the licenced premises. Aggrieved, the petitioner, which is an organisation comprising the kerosene retail dealers of karnataka, has filed the present petition questioning the validity of the circular issued by the joint director and a mandamus restraining the respondents from interfering with their right to sell kerosene in retail.

(2.) THE respondents have filed a statement of objections, in which the circular instructions have been justified on the ground that the retail kerosene dealers were not doing their business properly from their shops warranting action against them. It is urged that while the hawkers can sell kerosene from bullock carts in a particular area without being confined to any shop, a retail dealer must necessarily sell the said commodity from a specified premises mentioned in the licence. The circular issued by the joint director, it is urged, is nothing but enforcement of the conditions of the licence subject to which the retail dealers are required to distribute kerosene among the card holders.

(3.) MR. Gopala gowda, counsel for the petitioner, argued that the retail dealers were not necessarily required to sell kerosene from any specified premises or shops. He urged on the basis of the conditions stipulated in two licences annexures-e and f to the writ petition that the licensees, in whose favour the said licences have been issued have been permitted to sell kerosene from the fair price shops. He contended that a similar condition existed in the licences issued in favour of other members of the petitioner-federation entitling them to sell kerosene in front of the fair price depots from where the card holders purchase food grains, sugar and edible oil etc. Insistence on the part of the authorities for the retailers to sell kerosene only from a premises or a shop was, according to the learned counsel, sanctioned neither by the rules nor otherwise provided for by the terms of the licences. I am not, however, impressed by this submission. The licensing Order makes a distinction between a 'retail dealer and a 'hawker'. Para 2 (f) of the Order defines the term 'hawker' thus: