SHRIJEE TRADING COMPANY Vs. STATE OF GUJARAT

JUDGEMENT

(1.) In all these petitions, common question c arises for the consideration is regarding the legality and validity of the amendment made in the Gujarat Essential Articles (Licensing, Control and Stock Declaration) Order, 1981 ("Control Order" or "Order of 81" for short) and its effect.

(2.) The short facts of the case are that the petitioners are the persons who are functioning as wholesale dealers in PDS kerosene, but they are not the authorised dealers of the manufacturing Oil Company. There is no dispute on the point that the PDS kerosene is one of the notified essential commodities. The supply of PDS kerosene("Kerosene" for short) is regulated in the Gujarat State by the aforesaid Control Order. It is the case of the State Govt that earlier, on account of policy decision taken by the State Govt to abolish the system of functioning by wholesale dealers who are not company agents, instructions were issued to the Licensing authority empowered to grant licence under the Control Order to the effect that if the person is not authorised agent of the Oil manufacturing company("Company agent" for short) the licence for dealership should not be renewed. There are various instructions issued, from time to time, by various circulars, dated 30.7.1988, 4.10.1990, 3.4.1995, 6.1.1997, 29.8.1997, 22.1.1999, 5.2.01, 19.6.01 etc. The aforesaid instructions issued to the Licensing Authority were challenged by some of the wholesale dealers of Kerosene who are not company agents by preferring petition before this court being Spl.C.A.No.10976/98 and allied matters. The learned single judge of this court, as per common order, dated 15.9.2000, 19.1.2001 and 20.1.01 upheld the validity of the said circulars issued by the authority to the licensing authority and rejected the said special civil applications. The wholesale agents who are dealing in Kerosene who were the petitioners before the learned single judge carried the matters before the Division Bench of this court by preferring L.P.A Nos 538/01 and allied appeals and ultimately on 1.8.01 the Division Bench of this court (coram: D.M.Dharmadhikari, CJ(as his Lordship then was) and K.R.Vyas,J) took the view that the wholesale agents dealing in Kerosene have a fundamental right to run the business and as per the provisions of Article 19(6) of the Constitution of India, if such right is to be curtailed or restriction is to be put upon such right, there must be a valid legislation for such purpose and such curtailment or restriction can not be imposed by instructions and therefore the Division Bench of this court found that the circulars issued are unwarranted and therefore the said circulars were quashed. At the relevant point of time, applications of wholesale dealers in Kerosene who are not company agents were pending, but the Division Bench, while disposing the appeals, did not give any mandatory direction to decide the applications within a stipulated time limit or otherwise and made no further observations on the said aspect. Of course, it is the case of the petitioners herein that it was obligatory on the part of the authority concerned to consider the applications for renewal of licence even in the absence of mandatory directions of this court, but the fact remains that no mandamus was issued by the Division Bench to the authority concerned in respect of the aspect of taking decision upon the applications for renewal of licence.

(3.) It appears that thereafter the State Govt in exercise of powers under Clause 28 of the Control Order declared by amendment that the existing licences of PDS kerosene which expire on 31.12.01 of wholesale Kerosene dealers who are company agents shall be renewed for a further period of three months upto 31.3.02 and thereafter further extended upto 30.6.02. The aforesaid amendment came to be made on 31.12.01 and the legality and validity of the aforesaid amendment was challenged by the wholesale dealers who are not company agents by preferring Spl.C.A.No.3492/02 and allied matters. In the said group of petitions, the learned single judge of this court (Coram:D.A.Mehta,J) as per judgment dated 10.7.02 observed, interalia, that clause 5 of the Control Order does not envisage situation where licence can be granted for a period of less than five years and it is not possible to read the plain language of the said clause in any manner. The learned single judge further observed that clause 28 of the Control Order provides for a limited power of suspension and there is no power of amendment granted by the said clause on a plain reading of the provision. Therefore, consequently, the learned single judge found that the notification issued is illegal and contrary to the provisions of Control Order and the learned single judge also set aside the same. However, the learned single judge kept the question open as to whether the impugned orders by way of notification are violative of Articles 14 or 19(1)(g) of the Constitution of India. In the ultimate operative order after quashing the notification dated 31.12.2001 and 30.3.02 the learned single judge observed that the licensing authority shall act strictly in accordance with the provisions of clause 5 of the Order of 1981 without being fettered in any manner whatsoever by way of impugned orders and decide the applications for grant or renewal of licence in accordance with law. However, in the said judgment also the learned single judge while giving directions to the licensing authority to consider the applications for grant or renewal of licences did not pass any order for taking decision by the authority within a stipulated period of time limit, and on the correct interpretation of the judgment of the learned single judge, it appears that the learned single judge wanted to convey that while taking decision upon the applications for grant or renewal of licence, the notifications, dated 31.12.01 and 30.3.02 which were challenged in the petitions are not to be taken into consideration at all. A statement is also made at the Bar that since after hearing of the SCA No.3492/02 and allied matters as the matter was kept CAV, it was agreed by the learned GP that licence shall stand renewed for a further period of one month and accordingly the notification also came to be issued by the State Govt and as a result thereof the position remained the same as it was earlier upto 31.7.02.