Amitava Lala, J. - (1.) ALL the aforesaid writ petitions are similarly placed and have been heard analogously being connected with each other, therefore, the same are being decided by this common judgement and order having binding effect in all the writ petitions.
(2.) THE petitioners are petty dealers of high speed diesel oil and light diesel oil. According to them, by means of the impugned Government Order dated 01st February, 2005/ 04th February, 2005 the storage capacity of diesel oil has been reduced from 8000 litres to 2500 litres. THE Uttar Pradesh High Speed Diesel Oil and Light Diesel Oil (Maintenance of Supplies and Distribution) Order, 1981 (hereinafter in short called as the "Order, 1981") is applicable in their respective cases. Admittedly, the earlier Government Order, by which the storage capacity of diesel oil was enhanced from 4000 litres to 8000 litres, has not been challenged, but when the storage capacity has been reduced from 8000 litres to 2500 litres, the same has been challenged. In any event, by virtue of the interim orders all the writ petitioners are enjoying the interim protection, whereby applicability of the respective Government order about reduction of the quantity upto 2500 litres of diesel was kept in abeyance. Now, at the stage of final hearing we have examined the rival contentions of the parties to come to a final conclusion in respect of these matters. According to the petitioners, the reduction of storage capacity of diesel oil from 8000 litres to 2500 litres is interference with the business activities of the petitioners. It hits the right of the petitioners to carry on business as per Article 19(1)(g) of the Constitution of India. The petitioners further stated that variation in connection with supply can be made by the legislative control but not by any administrative direction. Mr. Ramendra Asthana, learned Counsel appearing for the petitioners, has relied upon various judgements of the Supreme Court and this Court. First of all, he has relied upon paragraphs 11 and 12 of the judgement reported in 2002 (4) SCC 98 (State of U.P. and others Vs. Daulat Ram Gupta). Upon going through such judgement, we find that it relates to a question whether the State Government or the licensing authority can issue direction for refusal of renewal of licences granted to the petty diesel dealers under the Order, 1981 if their places of business are within a radius of 5 Km. of a retail outlet run by a Governmental company, or not. Therefore, factually the issue involved in the cases before us is totally different from the issue before the Supreme Court. In the present cases, there is no question of making any distance in respect of the place of business nor refusal for renewal of licences. Mr. Asthana wanted to say that such order regarding distance was an executive order and the same was challenged before this Court and the same ultimately reached to the Supreme Court. However, the moot point for consideration of the writ Court is in paragraph-11 of such judgement, as follows: "11. It is not disputed that the method of grant of licence as well as the conditions of licence and its renewal are provided in the Statutory Order framed under the Essential Commodities Act. Clause 2 (d) of the Statutory Order provides that "dealer" means a person engaged in the business of purchase, sale or storage for sale of high speed diesel oil or light diesel oil or both but does not include an oil company. Clause 2 (h) of the Statutory Order provides that the "licensee" means a dealer holding a licence granted under the provisions of this Order. Clause 4 of the Statutory Order further provides that for grant of renewal of a licence an application in Form "B" attached to the Order, shall be given to the Licensing Authority. Every licence granted or renewed under this Order shall be in Form "C" and shall be subject to the conditions specified therein. Clause 8 of the Statutory Order further provides that the Licensing Authority may, for reasons to be recorded in writing, suspend or cancel any licence if it is satisfied that the licensee has contravened any provisions of this Order or the conditions of the licence or any direction issued thereunder. It is not disputed that the respondent was granted licence under the Statutory Order. Form "B" attached to the Statutory Order does not show that the licence to vend diesel oil can be refused if the applicant has place of business within the radius of 5 km of a retail outlet. Similarly, neither clause 4 nor Form "C" attached to the Statutory Order provides that no licence shall be renewed if the place of business of a licensee falls within a radius of 5 km of a government retail outlet." He has further relied upon 2006 (2) SCC 545 (State of Bihar and others Vs. Project Uchcha Vidya, Sikshak Sangh and others), though absolutely on a different factual background but possibly on a principle that right of occupation as envisaged under Article 19(6) of the Constitution is a part of fundamental right. A citizen cannot be deprived of such right except in accordance with law. The requirement of law for the purpose of Clause (6) of Article 19 of the Constitution can by no stretch of imagination be achieved by issuing a circular or a policy decision in terms of Article 162 of the Constitution or otherwise. Such a law, it is trite, must be one enacted by the legislature. Mr. Asthana further relied upon the judgement reported in 2009 (16) SCC 170 (Ayurvedic Enlisted Doctors" Association Vs. State of Maharashtra and another) but we failed to understand how the relevant part of reference i.e. paragraph 16 of such judgement is helping the cause of the petitioners. In such judgement it was held by the Supreme Court that under Article 19(6) of the Constitution reasonable restriction can always be put on the exercise of right under Article 19 (1)(g).
(3.) MR. Ravi Shanker Prasad, learned Additional Chief Standing Counsel, and MR. P.K. Sinha, learned Standing Counsel, appeared on behalf of the respondents and contended that the State Government has granted licences of petty diesel dealership to facilitate the farmers as well as citizens living in the remote and rural areas and the licences were issued to the eligible candidates in accordance with the provisions of the Order, 1981 as well as the Government orders issued time to time. The high speed diesel oil is directly controlled by the Central Government under the provisions of the Petroleum Act, 1934 (in short called as "Act, 1934"). As per 7 of the Act, 1934, no licence is needed for transport or storage of limited quantities of petroleum Class B or petroleum Class C. In view of the provisions contained under Section 7 of the Act, 1934, supply of high speed diesel oil, as has been regulated by the State Government through petty diesel dealers, will not be available to the persons living in remote areas as storage of more than 2500 litres of such diesel oil is not permissible. Therefore, the State Government has decided to reduce the quantity of storage upto 2500 litres, so that there will not be any conflict with the provisions of the Act, 1934 and further the State Government will be able to regulate the supply of high speed diesel oil to the persons living in remote areas of the State. According to us, a misconceived approach has been made by the petitioners in understanding the decision of the Supreme Court in Daulat Ram Gupta (supra) in connection with making law that for maintaining or increasing supplies of the essential commodity and for securing their equitable distribution and availability at fair prices, if any, the Central Government may, by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein. The relevant part of such judgement is as follows: "4. 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 "the U.P. Motor Spirit, Diesel Oil and Alcohol (Imposition of Tax) Act, 1939" enacted by the Provincial Legislature of the then United Provinces. Subsequently, 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. 5. 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 the 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 the power delegated to it under the Act." ;