SENTHILVE Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) The petitioners in these writ petitions are retail dealers. In the year 1973, the Government promulgated the Tamil Nadu Kerosene (Regulation of Trade) Order 1973, in exercise of the powers conferred on it under Section 3 of the Essential Commodities Act, 1955. The order came into force on the 14th Nov., 1973. The order was promulgated for ensuring an equitable distribution of kerosene at fair price. The order provided for appointment of wholesalers and retailers and earmarking the areas of supply for each of them. Under the provisions of the order no person shall start afresh or carry on business as a wholesaler except in accordance with the terms and conditions of a licence issued by the licensing authority. In order to carry on the business as a realer in the sale of kerosene, a person has to get himself registered as such by the licencing authority. The registration once granted will continue to be in force until it is cancelled by the licencing authority. Clause 5 (8) of the Order provides that the registered dealer shall conform to such directions and instructions as may be issued by the Commissioner or Collector of the district concerned or the licencing authority from time to time. Clause 18 proves for cancellation of a licence or registration certificate issued under the Order for contravention of conditions of licence or registration certificate or statutory order. The proviso states that no order shall be made under this clause unless the licencee or registered retailer has been given a reasonable opportunity of stating his case in writing against the proposed cancellation or suspension.

(2.) While so, on 3-9-1979, the Government issued G. O. Ms. 234. By the said G. O., the Government introduced a scheme of distribution on family cards through the public distribution system and directed that family cards not exceeding 500 may be allotted to retail registration certificate holders who solely depend on kerosene business alone for their livelihood. So far as the Madras city is concerned the Government order stated that separate orders would be issued.

(3.) Aggrieved by the said G. O. some of the retailers, who do not depend wholly on kerosene trade, filed two writ petitions which were dismissed by Mohan, J. at the stage of admission by his order dated 23-12-1980. The writ petitioners then filed W. As. 14 and 15. These writ appeals along with a batch of writ petitions were disposed of by a Bench of this Court by its common judgment dated 1-121981. Three contentions were raised before the Bench on behalf of the retail dealers who were not depending solely on the kerosene trade. (1) The impugned G. O. had to be struck down in so far as it restricted the supply to private retail registration certificate holders in the district who depend only on the sale of kerosene for their livelihood on the ground that it was discriminatory. (2) The effect of the G. O. amounted to a complete deprivation of the petitioners' business in kerosene by an executive fiat and on a ground which was not relevant to the distribution of kerosene on equitable basis or at fair price. (3) If the Government wanted to introduce a new system of distribution other than that found in the Order of 1973, they should have promulgate an Order in exercise of the powers under Section 3 of the Essential Commodities Act, and that it was not open to the Government to deprive any retail dealer who had also got registration under the licencing authority of their legitimate claim for doing business or for supply of kerosene. The Bench accepted the last of the contentions and came to the conclusion that the restriction authorising the private retail dealers who depend only on the sale of kerosene for their livelihood was not warranted by the regulation order as such and that if the Government wanted to introduce a new system of distribution of kerosene a new order should have been promulgated in exercise of their powers under S. 3 of the Essential Commodities Act.