High Court · 2012

I have heard Mr. D Das learned counsel appearing for the petitioner in W 2. P(C) No. 3456 / 2011 and Mr. P Kataki, learned counsel appearing for the petitio ner in WP(C) Nos.4409/2010 and 4411/2010. Also heard learned State Counsel, Assa m appearing for the State respondents as well as the learned Central Government Counsel appearing for the Union of India and the learned Standing Counsel, BTC. 3. ssal of their grievances are depicted hereinbelow;- WP(C) No. 3456/ 2011 The brief facts leading the petitioners to approach this Court for redre This writ petition has been filed by (cid:28)SK Oil Retailers Association (cid:29) (he 4. reinafter to be referred to as the ’petitioner association’) formed by the licen ce holders of SK Oil Retailers under the Public Distribution System of the State of Assam and registered under the Societies Registration Act, 1860. There are 95 members of the petitioner association and a list thereto showing the name s of licence holders, licence number and date of issue, respective area of opera tion and the quantity of allotment of SK Oil to the respective retailers has bee n annexed as Annexure-2 to the writ petition. It has been averred by the petitio ner association that (cid:28)SK Oil Retailers Association (cid:29) was formed and registered by the retailers of SK Oil under Gossaigaon Sub-Division, Bodoland Territorial Cou ncil (’BTC’ for short ) with a view to safeguard the fundamental as well as lega l rights of its members. It has been stated by the petitioner association that i ts members were allotted 400 to 1000 liters per month by the respondent keeping in view the area of operation, population etc. of the respective retailer. Howev er, from October 2010, the respondent authorities have reduced the allotment of SK Oil to retailers to meagre quantity of 150 liters per month. It has been alle ged that the said reduction in allotment quantity has been made without keeping in view the area of operation, population pattern and previous quantity of allot ment and, therefore, such action on the part of respondents is arbitrary and ill egal. The petitioner association has further alleged that such reduction in all otment quantity of SK Oil has been made absolutely in colourable exercise of pow er, inasmuch as, no reason, whatsoever has been assigned thereto. A representati on dated 10.11.2010 (Annexure-3) to that effect therefore was submitted to the respondent No.2, but the same has evoked no response till date. As such an application dated 7.3.2011 (Annexure-4) under Section 6 of the Right to Information Act 2005 (’RTI’ for short) was submitted to the appropr iate authority in response to which the respondent No. 6 vide his letter dated 2 5.4.2011 forwarded three WT Messages dated 12.10.2010, 10.1.2011 and 7.4.2011 to the petitioner association vide Annexure-5 series pertaining to the sub allocat ion of SK Oil received from respondent No. 4. It has also been contended by the petitioner association that from the said W.T. Messages, it appears that the res pondent authorities have not reduced the allotment quantity of SK Oil to the ret ailers as a matter of policy decision, rather this has been done on being influe nced by the Gao Panchayat Samabai Samitees of Gossiagaon Sub-Division with a vie w to increase the allotment quantity of SK Oil to the Samabai Samitees. To subst antiate this contention the petitioner association has referred to the allotment order issued by the respondent No. 6 for SK Oil to the Gaon Panchayat Samabai S amitees under Gossaigaon Sub-Division for the months of October, 2010 and May 20 11 vide Annexures- 6 and 7 to the writ petition.

5. No counter affidavit has been filed by or on behalf of Union of India in any of the three writ petitions, neither produced any record. However, a counte r has been filed on behalf of the respondent Nos.2, 3 and 6 contending inter ali a that quantity of SK Oil to the hawkers and retailers were reduced as per instr uctions received from the Director of Food and Civil Supplies, Assam (respondent No.4) vide W.T. Message No.DS1/2011/28 dated 4.7.2011 (Annexure 1 to the count er affidavit). It has further been stated that the Government of Assam in the Fo od and Civil Supplies Department is the appropriate authority to answer as to wh y the existing quota of SK Oil is being reduced.

6. The respondent No.4, i.e. the Director of Food and Civil Supplies, Assam has filed an affidavit-in-opposition controverting the averments and allegation s made in the writ petition. It has been contended that the business of purchase sale and storage for sale of ’Notified Articles’ viz. Kerosene Oil (blue dyed) is governed by the Assam Public Distribution of Articles Order, 1982 read with the Kerosen Fixation Restriction on use and fixation of ceiling price) order 199 3 and the Public Distribution System (control over), 2001 made under Section 3 read with Section 5 of the Essential Commodities Act, 1955. It has been furth er contended that quantum of allotment of highly subsidized blue dyed Kerosene o il meant for distribution through network of Public Distribution System depends upon the periodic allocation of such oil received by the State Government from G overnment of India in the Ministry of Petroleum and Natural Gas, New Delhi. Acco rding to the respondent No.4, this periodic allocation varies from time to time, and therefore, any downward variation ultimately reflects in the quantum o f allocation to appointed dealers including Family Identity C ard Holders and in such circumstances, the State Government has no other alterna tive except to reduce the allocation to district/Sub-Division proportionally, de pending upon the population pattern as of 2011 census report. Apart from that it has also been contended that at present more than 70% of SK Oil is being distri buted through Fair Price shops and the balance through hawkers/retailers etc. Ac cording to the respondent No.4, series of allegations have been reported in medi as about the involvement of hawkers in diversion of blue dyed Kerosene oil and i n the meanwhile a good number of cases have been detected and registered by the officials of the Department against delinquent hawkers. The Deputy Commissioners /Sub Divisional Officers (Civil) have categorized the hawkers, in so far it rela tes to their monthly quota and fixed the monthly quota of hawkers without mainta ining any uniformity amongst them and that is why to check the alleged black mar keting of blue dyed SK oil and to maintain uniformity in allotment to hawkers/re tailers, the respondent No.4 has resorted to such action. While controverting th e contentions of the petitioner association, the respondent No.4 has made a coun ter allegation that a hawker/retailer hardly distributes Kerosene oil to a consu mer on production of Family Identity Card, rather to say that they are involved in distribution of Kerosene oil to a floating population without maintaining any sale record. WP(C) No.4409/2010 WP(C) No.4411/2010 As has been stated hereinabove, the factual matrix of these two writ pet 7. itions are identical with the writ petition being WP(C) Nos.3456/2011. Only diff erence is that the area of operation of the petitioners in these two writ petiti ons is Morigaon district. It would be apposite to mention that the petitioners h erein are now fighting a second round of litigation so far reduction of quantity of SK Oil to hawkers/retailers is concerned in Morigaon district. There had bee n a similar move for reduction of allotment quantity of SK Oil to hawkers/retail ers in Morigaon district in the year 1999 by the respondent authorities concerne d. Sixteen such hawkers/retailers then filed a writ petition being WP(C) No.2624 /1999 before this Court, challenging the respondent’s action reducing monthly al lotment quantity of SK Oil to hawkers/retailers. This Court by its judgment and order dated 12.2.2002 (Annexure-II to WP(C) NO.4409/2010) disposed of the said W P(C) No.2624/1999 with a direction as follows; (cid:28)This writ application is disposed of with the direction that if the earlier quo ta of kerosene oil is available with the Deputy Commissioner, Morigaon that shal l be allotted to the petitioners as per order dated 12.3.99 but if that quota of kerosene oil is not available the order of Deputy Commissioner reducing the quo ta shall hold the field. It is for the Deputy Commissioner, Morigaon to find out the position and pass appropriate order in this regard. It is submitted that th e representation has been filed. If that is so the representation may be conside red by the Deputy Commissioner accordingly. (2) Heard Mr. HN Sharma, learned Advocate for the petitioner and Mr. Buragohain, learned Government Advocate for the respondents. (cid:29)

8. Thereafter, the allotment quantity of SK Oil to hawkers/ retailers was m arginally increased by the Deputy Commissioner, Morigaon in compliance with the aforesaid judgment and order passed by this Court.

9. Now in terms of W.T. Messages dated 9.7.2010 (Annexures-V and VI to the writ petitions) the respondent authorities have again reduced the allotment quan tity of SK Oil of hawkers and retailers without assigning any reason thereto.

10. Mr. Das, learned counsel appearing for the petitioner association in WP( C) No. 3456/ 2011 has submitted that retailership of SK Oil is the only source o f livelihood of the members of the petitioner association. The respondent author ities have reduced the allotment quantity of SK Oil of the retailers to a m eager 150 liters per month without giving any opportunity of being heard to the member of the petitioner association. Therefore, the impugned order reducing the allotment quantity of SK Oil vide W.T. Messages dat ed 12.10.2010, 10.1.2010, 7.4.2011 (Annexure 5 series) are arbitrary, illegal an d unreasonable. Mr. Das referring to impugned W.T. Messages dated 12.10.2010 sub mits that it was issued by the respondent No.4 on the basis of instruction purpo rtedly issued by Government of India, Ministry of Petroleum and Natural Gas, New Delhi and the Indian Oil Corporation. However, the respondent No. 4 has not pro duced the copies of the said letters containing instruction in respect of alloca tion and distribution of SK Oil. Mr. Das has further submitted that there is not hing on record to show that the monthly allotment quantity of the State of Assam or BTAD has been reduced by the Ministry of Petroleum, Government of India. O n the contrary, a comparative study of the sub-allotment orders dated 26.10.2010 and 7.5.2011 (Annexures-6 and 7 respectively) clearly shows that the allotment quantity of SK Oil to various Gaon Panchayat Samabai Samittees of Gossaigaon Sub -Division has significantly increased. In other words, the respondents have incr eased the allotment quantity of SK Oil to Samabai Samittees by the allotment qu antity of SK Oil to Gaon Panchayat Samabai Samittee by way of siphoning off the hawkers’/ retailers’ quantity. In respect to the allegations in the media about black marketing of blue dyed SK Oil by hawkers/ retailers, Mr. Das submits that the respondent No.4 has only made an omnibus statements, but failed to specifica lly point out any member of the petitioner association is involved in black marketing. Apart from that submitted Mr. Das that the respo ndents have immense power in law to punish the hawkers/retailers who are found t o have been involved in black marketing. Mr. Das has further submitted that news reports in the medias are often published in respect of black marketing by Gaon Panchayt Samabai Samittees, but instead of reducing, the allotment quantity of SK Oil to Gaon Panchayat Samabai Samittees has been significantly increased whic h speaks volumes of discriminatory treatment. Summing up his argument, Mr. Das, learned counsel has submitted that the action in reducing the monthly allotment quantity of SK Oil has resulted in curtailment of the source of livelihood of th e member of the petitioner association without rendering them an opportunity of being heard and, therefore, the impugned orders are bad in law and cannot be sus tained. Mr. Das, learned counsel has strongly relied upon the ratio laid down by this Court in 2012 (3) GLT 724 (Ashok Kumar Saboo (HUF) and Another -vs- Hindus tan Paper corporation limited (HPCL) & Ors.

11. Mr. Kataki, learned counsel appearing for the petitioners in WP(C) Nos.4 409/2010 and 4411/2010 adopts the arguments advance by Mr. Das, learned counsel appearing for the petitioners in WP(C) No.3456/2011. Per contra, Mr. Ghosh , learned State Counsel, defending the action of t 12. he respondent authorities submits that the monthly allotment quantity of the haw kers and retailers have been reduced for smooth maintenance of Public Distributi on system and also for the sake of uniformity, therefore, submitted Mr. Ghosh th at the said action of the authority may not be interfered with.

13. I have heard learned counsel appearing for the parties at length. Peruse d the statements made in the writ petition alongwith the annexures appended ther eto as well as counter affidavit filed by the respondent authorities. Upon perus al of the materials on record and after hearing the learned counsel appearing fo r the parties, I find that the respondent authorities, particularly, the respond ent No.4 has taken a dual stand on the issue. First limb of argument advanced by the learned State counsel appearing o 14. n behalf of respondent No. 4 is that distribution of SK Oil depends upon the pe riodic allocation received by the State Government from Government of India in t he Ministry of Petroleum and Natural Gas, New Delhi; this periodic allocation va ries from time to time and thus any downward variation ultimately reflects in th e quantum of allocation to the appointed dealers including Family Identity Card Holders. On the other hand, in the same breath, second limb of argument advanced by the learned State Counsel is regarding allegation made against the hawkers. It has been contended that series of allegations have been reported in medias ab out the involvement of hawkers in diversion of blue dyed Kerosene Oil and in the meantime, a good number of cases have been detected and registered by the Offic ials of the Department against the delinquent hawkers.

15. So far the first limb of argument is concerned, I find that order dated 26.6.2010 and 9.5.2011 (Annexures-6 and 7 to WP(C) Nos.3456/2011) belie the stat ement of the respondent No. 4 in respect of variation in allocation by the Gover nment of India in the Ministry of Petroleum and Natural Gas, New Delhi, inasmuch as, from perusal of the said two documents, it becomes crystal clear that from the month of reducing the allotment quota of hawkers/ retailers, the allotment q uota of SK Oil to Gaon Panchayat Samabai Samittees of Gossaigaon Sub-Division ha ve been significantly increased. Apart from that, the respondent No. 4 has not b een able to put any material on record to show or substantiate his contention th at from the month of October 2010, the Ministry of Petroleum and Natural Gas, Ne w Delhi, has, in any manner, reduced the allotment quota of SK Oil to the State of Assam. That being the position, I hold that such stand taken by the responden t No.4 is not sustainable and cannot stand the scrutiny of law.

16. Having come to the second limb of argument, I find that the allegation o f diversion of blue dyed S.K. Oil by hawkers/retailers is a general statement. T he respondent No. 4 has failed to point out as to whether any of the members of the present petitioners is involved in such diversion or not. Even if the allega tion of respondent No. 4 is believed, all the hawkers/retailers cannot be subjec ted to punishment for the misdeeds committed by a few. In the case of Ashok Kumar Saboo (supra), this Court has held as thus:

17. (cid:28)Article 19(1)(g) of the Constitution of India guarantees the fundamental right of a citizen to carry on any occupation, trade or business. Any action on the part of the State, within the meaning of Article 12 of the Constitution of India , which infringes such fundamental right cannot stand the scrutiny of law. The S tate though is empowered to put reasonable restriction on the fundamental right guaranteed under the Constitution, its action, however, cannot be arbitrary, unr easonable, unjust and unfair & &.. (cid:29).

18. In the case in hand, by reducing the allotment of quota of S.K. Oil to t he hawkers/retailers by the impugned orders, they are virtually left to starve. More so, as held in the case of Ashok Kumar Saboo (supra), the State though is e mpowered to put reasonable restriction on the fundamental right guaranteed by th e Constitution of India, its action cannot be arbitrary, illegal and unreasonabl e.

19. For the foregoing reasons and discussions made hereinabove, these writ p etitions stand allowed. The impugned orders are set aside and quashed. It is dir ected that the Government of Assam in the Ministry of Food and Civil Supplies De partment shall restore the previous allotment quota of S.K. Oil to hawkers/retai lers so far the above three cases are concerned, until of course, S.K. Oil alloc ation to the State of Assam is not reduced/changed by the Government of India in the Ministry of Petroleum and Natural Gas, New Delhi. It is made clear that in the event of any downward allocation of S.K. Oil in the State of Assam by the Go vernment of India in the Ministry of Petroleum and Natural Gas, New Delhi, the G overnment of Assam, Food and Civil Supplies Department shall have the liberty to reduce sub-allocation, albeit proportionately to all the distributing agencies including the hawkers/retailers. The sub allocation as directed above shall be r estored with effect from the month of October, 2012. 20. rder as to cost. Considering the facts and circumstances of the case, there shall be no o