- (1.) All the above-mentioned writ petitions, which are ten in number, are being decided by this common order as in all of them, identical questions of law and facts are involved. S. B. Civil Writ Petition No. 3152/2002
(2.) This writ petition under Article 226 of the Constitution of India has been filed by the petitioner-Union on 21-8-2002 against the respondents with the prayer that by an appropriate writ, order or direction, the impugned order Annex. 5 dated 12-8-2002 passed by the respondent No. 3 District Collector (Supplies), Bikaner by which the wholesale dealers were asked not to distribute blue kerosene to the retailers, be quashed and set aside.
(3.) The case of the petitioner as put forward in this writ petition is as follows :- It may be stated here that some of the writ petitions are filed by the individuals and this writ petition is filed by the petitioner-Union of Kerosene Oil Retail Sellers, which was registered on 14th Jan. 1991 under the Indian Trade Unions Act, 1926 bearing Registration No. D. R. T. U. /BKN/1/91. The case of the petitioner-Union is that licenses were issued to the members of the petitioner-Union under the provisions of the Rajasthan Trade Articles (Licensing and Control) Order, 1980 (hereinafter referred to as "the Order of 1980"), which came into force with effect from 27/08/1980 in capacity as retailers and licenses were also issued to wholesaler under the Order of 1980. Copies of the licenses are marked as Annexs. 1 and 2. The further case of the petitioner-Union is that after getting the licenses, the members of the petitioner-Union have been selling kerosene oil in capacity as retail sellers through the wholesaler. The further case of the petitioner-Union is that in the year 1991, the respondents put a condition that the retail sellers shall make their identity cards and then they are entitled to take delivery of kerosene oil through wholesaler and the distribution of the kerosene oil shall be maintained in the register, which will be verified by the concerning officer of the Food and Supplies Department. Accordingly, all the members of the petitioner-Union made their identity cards and the registers have been verified by the concerning officer. The further case of the petitioner-Union is that the kerosene oil is also being delivered by the license holders under the proviso to the Rajasthan Foodgrains and other Essential Articles (Regulation of Distribution) Order, 1976 (hereinafter referred to as "the Order of 1976") but through their fair price shops. Thus, both types of license holders under the proviso to Order of 1976 as well as under the proviso to Order of 1980 have been allotting/distributing the kerosene oil without any interruption. The further case of the petitioner-Union is that in the year 1994, to remove the complaints in respect of blackmarketing, reducing the quality and mixing the kerosene oil into diesel, the blue kerosene oil was delivered to both the types of license holders. Therefore, to make uniformity in distributing the blue kerosene oil, the respondent No.1 Food and Supply Department of Government of Rajasthan, Jaipur issued directions vide letter dated 3rd Oct. 1994, a copy of which is marked as Annex. 3. The gist of the letter Annex. 3 is as follows :- (i) That in future, the Kerosene oil would be distributed through fair price shops as far as possible. (ii) That retailers could also sell kerosene oil to consumers on the basis of ration card. (iii) That persons who got the licenses under the Order of 1980 in capacity as retailers, were put under supervision so that blackmarketing can be controlled. The further case of the petitioner-Union is that licenses were given to retail sellers under the proviso to Order of 1980 and they were authorised to sell only the imported white kerosene oil on free sale, but since the members of the petitioner-Union were already having licenses to sell rationing kerosene oil, therefore, licenses, which were issued in 1999 for selling imported white kerosene oil, were not made applicable to the case of the members of the petitioner-Union. (In the license (Annex. 1) issued to retailer Ramjeet, the word mentioned is 'kerosene oil' while in the license (Annex. 4) issued to Jugal Kishore, the word mentioned is "imported kerosene" and thus, there is a distinction between Annex.1 and Annex. 4 and in Annex. 4, the word "retailer of free sell kerosene" is also mentioned). The further case of the petitioner-Union is that all of a sudden, the respondent No. 3 District Collector (Supplies), Bikaner issued an order dated 12-8-2002 (Annex. 5) by which the wholesalers were asked not to distribute blue kerosene oil to the retailers (present petitioners). The further case of the petitioner-Union is that after issuance of the aforesaid order Annex. 5, as per instructions of the State Government, the District Supply Officer, Hanumangarh as well as other Districts have also issued the order vide letter dated 13th August, 2002, by which the wholesalers holding the licenses under the proviso to Order of 1980 were directed to obtain their licenses under the proviso to Order of 1976. In this respect, a copy of the letter dated 13th August, 2002 issued by the District Supply Officer, Hanumangarh is marked as Annex. 6. In this writ petition, the order Annex. 5 dated 12-8-2002 has been challenged by the petitioner-Union on various grounds and the main grounds are as follows :- (i) that no notice or opportunity of hearing was given to the members of the petitioner-Union before passing the impugned order Annex. 5 dated 12-8-2002 and thus, the said order Annex. 5 is liable to be set aside on that ground alone as it is hit by the principles of natural justice. (ii) That there is a clear-cut hostile discrimination between the similarly situated license holders under the same proviso to Order of 1980 as the wholesalers have been allowed to sell blue kerosene oil by way of allowing them to obtain the license under the proviso to Order of 1976, whereas only the retail sellers have been disallowed and the allotment/distribution of blue kerosene oil to the retail sellers have been cancelled or disallowed which is quite illegal, unjustified, unconstitutional and arbitrary action on the part of the respondents so as to be violative of Article 14 of the Constitution of India. Thus, the impugned order Annex. 5 is liable to be set aside on that ground also. (iii) That when licenses were issued to sell kerosene oil, thereafter stopping of supply of blue kerosene oil to the members of the petitioner-Union violates the terms of the licenses as in the licenses issued to them, no distinction was made between blue and white kerosene. Hence, this writ petition with the prayer as stated above. A reply to the writ petition was filed by the respondents and in that reply, it was averred by the respondents that for distribution of kerosene, there are two systems prevailing in the State, for which the Order of 1976 and Order of 1980 were issued. According to the respondents, under clause (3) of the Order of 1976 Authorisation may be issued to wholesalers/fair price shop keepers and under Order of 1980, licenses may be issued to dealers and thus, the distribution of kerosene has been provided to Fair Price Shop-keepers and Rajasthan Trade Article Licensee (RTAL). The further case of the respondents is that in both these Orders of 1976 and 1980, the words "Kerosene Oil" has been included and authorisation and license have been given for the "kerosene oil" only and furthermore, authorisation given under the Order of 1976 authorises the fair price shop-keepers to sell foodgrains and other essential articles supplied by the Government from time to time, directly to those consumers whose ration cards are registered at their shops in Unit Register but that condition is absent in the Order of 1980 in RTAL dealers. Therefore, there is a vast difference between the Fair Price Shop-keepers and Rajasthan Trade Article Licensee. The further case of the respondents is that in the year 1992, a policy-decision was taken by the State Government that RTAL dealer, who is holding license in kerosene oil shall not be entitled to sell the same and kerosene will be sold through the public distribution system and fair price shops and that decision was challenged by the licensee, namely, Radha Mohan in S. B. Civil Writ Petition No. 6340/92, which was dismissed on 19-4-1994 and the policy-decision was upheld by this Court in D. B. Civil Special Appeal (Writ) No. 557/92, State of Rajasthan v. Pink City (Trade Articles) Khudra Vikreta Sangh, Jaipur, therefore, at present the licensees under the Order of 1980 are not distributing kerosene in cities like Jaipur, Baran, Dausa, Tonk, Bharatpur, Jhunjhunu, Karoli, Dholpur, Ajmer, Alwar. The further case of the respondents is that thereafter, the Central Government has further issued the Order under the liberalisation scheme in exercise of the powers conferred by S. 3 of the Essential Commodities Act, 1955 (hereinafter referred to as "the Act of 1955") namely, Kerosene (Restriction on Use and Fixation of Ceiling Price) Order, 1993 (hereinafter referred to as "the Order of 1993") in which parallel marketing system was introduced for distribution of kerosene rather than to distribute through Government based marketing through fair price shop-keepers and in Clause (8) of the Order of 1993, it is provided that the kerosene supplied through public distribution system shall be made distinguishable from the kerosene to be imported, sold or distributed under parallel marketing system and, therefore, the State Government had changed the distribution of white kerosene to blue dyed kerosene to maintain distinction among public distribution and parallel marketing system. Therefore, since 1994 the blue dyed kerosene was being distributed among public through public distribution. The copies of the Order of 1993 and letter dated 7-6-1994 are marked as Annexs. R/1 and R/2 respectively. Thus, it was submitted by the respondents that for promoting the parallel marketing system, RTAL dealers were estopped from selling blue Kerosene and that was done as per the policy-decision of the Government. Hence, the members of the petitioner-Union are not entitled to any relief in this writ petition and the same be dismissed.;