B.K. Roy, Pramod Kumar Jain, J. - (1.) THE petitioners have come up with a prayer to command the respondents to renew their licences of petty high speed diesel and light diesel oil ignoring the condition imposed in the executive instructions dated 16.9.1987. They have also come up with a further prayer to quash the order dated 25th April, 1989 passed by respondent No. 3, District Supply Officer, Azamgarh refusing to renew the licence of petitioner No. 1. The petitioners assert, inter alia, that they are petty dealers of high and light diesel oil; in the year 1981 the State of U.P. enforced Uttar Pradesh High Speed Diesel Oil and Light Diesel Oil (Maintenance of Supply and Distribution) Order, 1981 (hereinafter referred to as the Licensing order for the sake of convenience), under the provision of it no person can carry on business as a dealer except in accordance with the terms and conditions of the licence granted under the licensing order commencing from 1st April to 31st March; they are doing their business for the last more than 10 -12 years which is their only source of livelihood; that they have never violated any of the terms of the licence; that the petitioners get their supply from the wholesale dealer; petitioner No. 1 filed an application for renewal of his licence alongwith necessary amount for the period 1st April, 1989 to 31st March 1990 whereas petitioner Nos. 2 and 3 had applied for grant of licence for the year 1988 -89 alongwith necessary requisites, who were informed by the authorities concerned that they may carry on their business without giving anything in writing nor were their applications rejected; petitioner Nos. 2 and 3, however, were unofficially informed by the District Supply Officer that by an executive instruction a restriction has been put to the effect that no licence will be granted if any company has a diesel retail outlet installed or likely to be installed within an area of 5 Kms.; so far as the petitioner No. 1 was concerned the renewal of his licence was refused by respondent No. 3 in view of the aforementioned instruction by order dated 25 April, 1989 as contained in Annexure '3' and hence this writ petition. The petitioners have also stated that by another executive instruction the area of 5 Kms. has been increased to 10 Kms.
(2.) IN the counter affidavit filed on behalf of respondents, sworn by a clerk of the office of District Supply Officer, Azamgarh, it has been stated, inter alia, that in view of the standing order of the State Government the prayer for renewal of licence of petitioner No. 1 was refused; so far as the petitioners 2 and 3 are concerned since their licences are valid only up to 31st March 1986 and thus they were invalid and they never applied for renewal of their licences; in terms of the interim order passed by this Court the licence of petitioner No. 1 was renewed for 1989 -90 and he is working as retail dealer; that the State Government is empowered to issue the executive order in question in public interest; and that the petitioners have tailed to make out any case for interference by this Court and hence the writ petition is liable to be dismissed. Sri P.N. Tripathi, learned counsel appearing in support of this writ petition, contended that the circular in question was held to be arbitrary and violative of Article 19(1)(g) of Constitution of India by a Division Bench of this Court in Daulat Ram Gupta v. State of U.P. : AIR 1996 Alld. 30, and accordingly the prayers made in the writ petition are fit to be granted.
(3.) ON 1.4.1998 we desired to know from Mr. Yadav, learned standing counsel, as to whether against the aforementioned Division Bench decision the State went up in appeal before Supreme Court, and if so, with what result. Mr. Yadav states that despite his best endeavor, he could not know as to whether any appeal by way of special appeal was preferred before the Supreme Court against the Division Bench decision.;