M.Y.EQBAL, J. - (1.) IN all the writ petitions since common questions of law and facts are involved, they have been heard together and disposed of by this common order.
(2.) PETITIONERS have prayed for quashing the respective notices issued by the District Supply Officer, Hazaribagh directing them to refund the amount of wholesale dealers ' commission realised by them from the retailers on the sale of kerosene oil and also for quashing the requisition sent by District Supply Officer, Hazaribagh to the District Certificate Officer. Hazaribagh for realising the amount and also for quashing the entire certificate proceeding issued by the District Certificate Officer, Hazaribagh in the respective certificate cases for the recovery of the amount from the petitioners. These notices have been annexed as Annexures -6, 8 and 10 respectively to the writ petitions. Petitioners are the wholesale dealers ' of kerosene oil holding licences granted under the provisions of Bihar Trade Articles (Licences Unification) Order, 1994. The Central Government time to time fixed commission which the petitioners were entitled to realize on the sale of kerosene oil. The said commission was time to time revised by the Ministry of Petroleum and Natural Gas, Govt. of India. However, petitioners realized commission from the retailers at the rate fixed by the Ministry of Petroleum and Natural Gas, Govt. of India and also realized commission on the basis of the direction of the Deputy Commissioners of different district of the State of Bihar and Jharkhand. The petitioners, therefore, realized commission from two sources. However, when it came to the notice of the State Government, the Deputy Commissioners were directed to stop the realization of wholesale, dealers commission fixed by the Deputy Commissioners. The Deputy Commissioners accordingly denied payment of wholesale dealers commission and the said order was challenged by the petitioners by filing writ petition being CWJC No. 1471/01 and other analogous cases. The said writ petitions were disposed of by this Court in terms of judgment dated 16th April, 2004 in the case of All India Kerosene Oil Dealer Federation V/s. State of Jharkhand, 2004 (2) JCR 626 (Jhr). While disposing of the writ petitions, this Court held as under : "20. At the very outset, I am of the opinion that Patna High Court by the aforesaid order neither fixed nor directed the Deputy Commissioner to pay dealer 'scommission at the rate of 2.15%. On the contrary in the aforesaid two orders only liberty was given by the Patna High Court to the petitioners to approach Union of India for redressal of their grievances. The contention of the petitioners that the Commissioner -cum -Secretary, Food, Civil Supply and Commerce Department, Government of Bihar was directed to fix the commission at the rate of 2.15% is wholly misconceived and devoid of any substance. As a matter of fact, it appears from the documents annexed with the writ petition and the counter affidavit that the petitioners approached the Deputy Commissioners of some of the districts on the basis of order dated 13.5.1998 and procured the order from the Deputy Commissioner for payment of 2.15% commission. Surprisingly petitioners also approached the Ministry of Petroleum, Government of India on the basis of modified order dated 13.10.1998 and the Government of India by letter dated 27.10.2000 fixed the rate of commission of kerosene oil at Rs. 170 per kilo litre. On the basis of the revision of commission by the Central Government, the Food, Supply and Commerce Department, Government of Jharkhand issued the impugned letter dated 30.10.2001 revising commission. The Deputy Commissioners of some of the districts particularly Deputy Commissioner, Godda appears to have misconstrued the order passed by the Patna High Court in CWJC No. 11057 of 1996 as if the Court directed the Deputy Commissioner to fix 2.15% commission. In my opinion therefore, commission realized by the members of the petitioners/association at the rate of 2.15% pursuant to the direction of the Deputy Commissioner is illegal and wholly unjustified. The respondents have therefore rightly issued impugned letters withdrawing commission which was being realized illegally by the petitioners." While hearing the petitioners at the admission stage, the Bench had passed the following order : "Mr. Basudev Prasad, learned Senior Advocate submitted that a similar matter is pending in this Court being CWJC No. 1471 of 2001 in which an interim order was passed on 30.4.2001 (Annexure -9) and accordingly the commission @ 2.15% only is being charged by the petitioner 'smembers. Even then the impugned orders dated 22.12.2003 and 23.12.2003 (Annexures -11 and 12) have been issued. Learned counsel further submitted that the said action is against the principles of natural justice and in the teeth of the said order passed by this Court on 30.4.2001 in CWJC No. 1471 of 2001. Learned State counsel accepts notice on behalf of the respondent Nos. 1 to 8 Mr. P.K. Prasad accepts notice on behalf of respondent Nos. 9, 10 and 11. As prayed for, six weeks time is granted to the respondents for seeking instruction and filing counter affidavit, if any. Rejoinder, if any, may be filed within two weeks from the date of receipt of the copies of the counter affidavits. Till further orders, if the members of the petitioner charge commission @ 2,15% only, in terms of interim order Annexure -9, no coercive steps will be taken. However, they will maintain proper account of this amount. If the writ petition fails, they will be liable to return, the amount of commission to the Government. It appears from Annexure -11 that the matter is being examined. Such enquiry may go on. This order will be applicable to the members of the petitioner only and shall be subject to final decision in these writ petitions. Put up this case along with CWJC No. 1471 of 2001 for Admission on 31st March, 2004." So far the recovery of the amount from the dealers, illegally realized by them is concerned, the Bench held as under : "27. Admittedly, on the basis of illegal order passed by Deputy Commissioner of some of the districts, the members of petitioner association illegally gained advantage by receiving commission and in terms of interim order they were directed to maintain accounts. The Deputy Commissioner of the concerned districts shall therefore be entitled to take action against those dealers for the recovery of the amount which have been illegally paid or collected by them."
(3.) MR . Biren Poddar. learned counsel appearing for the petitioners, firstly, contended that the initiation of certificate proceeding for the realization of the commission amount by the Deputy Commissioners is wholly without jurisdiction, illegal, and void. inasmuch as, the amount is not a Government due mid is not a public demand as defined under Sec.3(6) of the Bihar and Orissa Public Demands Recovery Act, 1914. Learned counsel submitted that the petitioners never entered into any agreement with the concerned respondents to the effect that in case any amount recovered by the petitioners from its customers is held to be illegal and the same can be recovered as a public demand under the provisions of the said Act. Learned counsel further submitted that the amount realized by the petitioners from the retailers, not over and above the selling price cannot be said that the petitioners have realized excess amount than what has been fixed by the Deputy Commissioners. Learned counsel, lastly, submitted that even if it is finally held that the petitioners are liable to refund the wholesale dealers ' commission realized from the retailers, in that event also the petitioners may be liable to refund the same to those retailers from whom the said commission was realized but the State Government is not at all entitled to demand for the refund of the amount from the petitioners.;