I.S. Tiwana, J. - (1.) IN these seven petitions (C.W.P. Nos. 5619, 5718, 5797, 5798, 5799, 5800 of 1985 and 251 of 1986) the Petitioners who are dealers Under the Haryana Kerosene Dealers Licensing Order, 1976 (hereinafter called the Order) and are, thus, entitled to the supply and sale of Kerosene oil seek to contend that: (i) Clause 14 of the Order which entitles the State Government to exempt any person or class of persons from the operation of all or any of the provisions of the Order is violative of Article 14 of the Constitution of India being the repository of an arbitrary, unguided and uncontrolled power, and (ii) the exemption granted to the private Respondents, - -vide notification dated 23rd January, 1986 (Annexure P2) from certain provisions of the Order is again void, being discriminatory and violative of the said Article of the Constitution. Learned Counsel for the parties, however, agree that in order to judge the merits of the above -noted two contentions, the facts stated in the first -mentioned petition, viz., C.W.P. No. 5619/1985 may be taken as specimen for purposes of this common judgment. The factual matrix is as follows.
(2.) IN exercise of the powers conferred by Section 3 of the Essential Commodities Act, 1955 (Central Act 10 of 1955), read with Government of India, Ministry of Industry and Civil Supplies (Department of Civil Supplies and Cooperation) Order No. S.O. 681(E), dated 30th November, 1974, and all other powers enabling him in this behalf, the Governor of Haryana with the prior concurrence of the Central Government issued the Order on 10th March, 1976, as he was of the opinion that it was, "necessary and expedient so to do for maintaining supplies, securing equitable distribution and availability at fair prices of Kerosene in the State of Haryana." It concededly extends to the whole of the State of Haryana. As per Clause 2(a) of the Order, "dealer" means a person engaged in the business of purchase, sale or storage for sale of Kerosene, whether wholesale or retail and whether in conjunction with any other business or not. Clause 3 injuncts that no person shall carry on the business as a dealer except under and in accordance with the terms and conditions of a license issued to him in this behalf by the District Magistrate. Clauses 4, 5 and 6 provide for the making of an application in form 'A' for securing a license, the period of the said license and the fees chargeable therefor and deposit of security, etc., for the due performance of the conditions of the license. Clauses 7 to 10 which are not relevant or material for the decision of the controversy in hand deal with the situation as to when the license of a dealer can be cancelled, security forfeited and an appeal against orders passed to that effect. Clause 11 grants power to the Director, the District Magistrate, the District Food and Supplies Officer and other officers, to enter the premises of a Kerosene dealer or any other premises where contravention of any of the provisions of the Order takes place and to seize the goods. The case of the Petitioners, as already noticed in the opening part of this judgment, is that Clause 14 of the Order entitles the State Government to discriminate between dealer and dealer; that this power being not guided or controlled by any provision of the Order deserves to be struck down as violative of Article 14 of the Constitution, and, in any case, the exemption granted to the private Respondents, - -vide impugned notification P. 2, from the provisions of Clauses 3 to 6 of this Order is a clear instance of misuse of that power, and, thus, deserves to be struck down. As against this, the case of the Respondents (official as well as non -official) is that the preamble of the Order as well as the scheme of the same clearly lay down as to how and when the State Government is to exercise the power under Clause 14 of the same and the said power cannot be styled as unguided or uncontrolled in any manner. According to the Respondents, the whole purpose of the Order is to maintain supply and equitable distribution and availability of Kerosene, which concededly is an essential article, at fair prices in the State of Haryana. It is with a view to achieve this object that a parallel line of distribution through Government Fair Price Shops has been created with the issuance of notification P. 2. As a matter of fact, this notification was preceded by a notification dated 16th April, 1976 (Annexure R 1) which reads as follows: In pursuance of the powers conferred by Clause 14 of the Haryana Kerosene Dealers Licensing Order, 1976 and in supersession of Haryana Government Food and Supplies Department, notification No. S.O. 72/C.A. 10/55/3/P.K. D.L.O./C.L. 11/69, dated the 10th September, 1969, the Governor of Haryana hereby exempts the following from the provisions of Clauses 3, 4, 5 and 6 of the said order, namely: (1) all persons engaged in the business or sale or storage for sale of Kerosene at Government Fair Price Shops who are authorised to do so by the Government or on its behalf by some officer subordinate thereto; and (2) all persons engaged in the business of sale or storage for sale of Kerosene on behalf of: (i) Cooperative Agriculture Service Societies; and (ii) Cooperative Thrift and Credit Societies. It is this notification which is amended by the impugned notification P. 2 adding Clause (iii) to the same (Annexure R. 1), which reads as follows: Fair Price Shops or depot -holders sponsored or allotted by the Competent Authority of the State. It is explained that the necessity to amend notification R1 arose from the fact that though all through, the State Government had been considering or taking the sale premises of the depot -holders a "Government Fair Price Shops" yet at a certain stage, a doubt arose as to whether these premises of depot -holders could actually or really be held to be "Government Fair Price Shops", and, thus, to put the whole matter beyond the pale of doubt, the presently impugned notification P2 was issued exempting the depot -holders from the provisions of Clauses 3 to 6 of the Order. According to these Respondents, this does not result in any discrimination between the depot -holders and the Petitioners who, as already pointed out, are retail 'dealers' under the Order, and in any case, there is enough of justification with the State Government to treat the depot -holders as a class apart from the rest of the dealers with a view to achieve its object or that of the Order, i.e., to create a parallel line of distribution of Kerosene through these depots at a fair price. It has further been highlighted on behalf of these Respondents that as a matter of fact, the depot -holders are authorised to store and sell a number of other essential commodities at prices regulated by the State authorities, and for this authorisation, these depot -holders have to enter into an agreement with the former for the sale and equitable distribution of controlled essential commodities. By virtue of this agreement, these depot -holders are subject to almost similar conditions as are contained in the Order; they are required to deposit security before the allotment of a depot in their favour and the said security is liable to be forfeited in case of breach of any of the terms and conditions of the agreement which almost run parallel to the various provisions of the Order itself. With a view to avoid these depot -holders to secure a license for each and every essential commodity in the storage and sale of which they deal with, they have been exempted from the specified provisions of the Order. In a nutshell, the case of the Respondent -authorities is that, as a matter of fact, these depot -holders have virtually to observe and fulfil all the requirements or obligations which are required to be carried out by a 'dealer' tinder the Order. Having heard the learned Counsel for the parties at some length in the light of their pleadings, I see no merit in these petitions.
(3.) IT is, no doubt, true that Clause 14 of the Order vests a discretionary power in the State Government to exempt any person or clasp of persons from the operation of all or any of the provisions of the Order, but every power to exercise discretion is not necessarily to be assumed to be a discriminatory power or power to discriminate unlawfully. The mere possibility of abuse of power does not essentially invalidate the conferment of power. Conferment of such a power is necessarily coupled with the duty to exercise it bona, fide and for effectuating the purpose and policy underlying the rules which provide for the exercise of the power. Thus, if in the scheme of the rules, a clear policy relating to the circumstances in which the power is to be exercised is discernible, the conferment of power must be regarded as made in furtherance of the scheme of the rules and is not open to attack as infringing the equality clauses of the Constitution. To me, it appears clear from a reading of tie preamble of the Order and the scheme lying thereunder that tie power vested in the State Government under Clause 14 of the Order is controlled or guided by the same and is to be exercised with a view to maintaining supplies, securing equitable distribution aid, availability of Kerosene oil at fair prices in the State of Haryana. I, thus, find no invalidity in this clause of the Order.;