- (1.) V. N. Khare, J. Leave granted in SLP (Civil) Nos. 472/2002, 473/2002, 13106/2001 and 2908/2002.
(2.) THE short question which falls for our consideration in this group of appeals is whether the State Government or the licensing authority can issue direction for refusal of renewal of licences granted to petty dealers under the U. P. High Speed Diesel Oil and Light Diesel Oil (Maintenance of Supplies and Distribution) Order, 1981 (hereinafter referred to as the 'statutory order') if their places of business are within a radius of five kilometers of retail outlet run by a Government Oil Company. Since common question of fact and law is involved in this group of appeals, learned Counsel for the parties have advanced arguments in special leave petition (Civil) No. 472/2002. Therefore, we propose to notice the facts which have given rise to Civil Appeal No. 2339/2002 (Arising out of SLP (Civil) No. 472/2002 ). Earlier, the sale of light diesel oil and high speed diesel oil in the State of U. P. was governed by an Act known as U. P. Motor Spirit, Diesel Oil and Alcohol (Imposition of Tax) Act, 1939 enacted by Provincial Legislature of the then united provinces. Subsequently, the Parliament enacted the Essential Commodities Act, 1955 (hereinafter referred to as 'the Act') with a view to provide, in the interest of general public, for the control of the production, supply and distribution of, and trade and commerce, in certain commodities. It is not disputed that the sale of high speed diesel oil and light diesel oil is one of the essential commodities which is governed by the Act. Section 3 of the Act provides that if the Central Government is of the opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, it may, by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein. Sub-section (2) thereof provides that without prejudice to the generality of the powers conferred by sub- section (1), an order amongst other things, may provide for regulating by licences, permits or otherwise the storage, transport, distribution, disposal or consumption of any essential commodity. Section 5 of the Act provides that the Central Government may, by notified order, direct that the power to make orders or issue notifications under Section 3 shall, in relation to such matters and subject to such conditions, if any, as may be specified in the direction, be exercisable by a State Government or any officer or such authorities subordinate to the State Government, as may be specified in the direction.
(3.) AFTER passing of the Act, the Government of U. P. felt that in the absence of retail outlets for sale of diesel oil in rural areas, the consumers, specially the farmers have to face considerable hardship in carrying out their agricultural operations and, therefore, it took decision to grant licences to petty dealers in rural areas to sell diesel oil. It is in the aforesaid background, the State Government of U. P. framed the statutory order, in exercise of power delegated to it under the Act. The respondent herein was granted a licence for sale of diesel oil under the statutory order. The said licence was being renewed from time to time. On 25-11-1981, the Government of U. P. by an executive order directed that no licence for retail sale of diesel oil granted under the statutory order, shall be renewed if the place of business of such licensee falls within a radius of 5 kms. of the Government run retail outlets. The said executive order dated 25-11-1981 was challenged by means of writ petitions before the High Court of Judicature at Allahabad. It is alleged that by a judgment and order dated 4-5- 1989, the High Court allowed the writ petition, inter alia, holding that the impugned executive order dated 25-11-1981 placed an unreasonable restriction on the fundamental right of the petty dealers and that the said executive order could not be passed without hearing the licensee affected thereby.;