CWP No.3723 of 201o-D v. Union of India through Ministry of Petroleum and Natural Gas Government

The first guidelines were issued after dismantling of the Administered Pricing Mechanism (APM) and the same were forwarded on 19.8.2003. Thereafter, opening of new retail outlets was frozen on 20.4.2006. The same was lifted on 4.5.2006. The opening of new retail outlets was again frozen on 11.6.2008. Thereafter, the same was lifted on 26.11.2009. The new guidelines have been issued on 6.4.2011. These were modified on 25.4.2011. The letters, as noticed above, dated 6.4.2011 and 25.4.2011 have been kept in abeyance vide letter dated 25.8.2011. The decision required to be taken by the administrative bodies must be certain and consistent. The persons, who are in the 12 business, must know what is the stand of the Central Government.

16. Their Lordships of the Hon’ble Supreme Court in Asha Sharma versus Chandigarh Administration and others, (2011) 10 SCC 86 have held that the authorities are expected to be consistent in their decisions and bring certainty to the Allotment Rules. Their Lordships have further held that this can only be done by making fair, judicious and reasoned decisions on the one hand and refraining from amending the Allotment Rules except in exceptional and extraordinary circumstances on the other. Their Lordships have further held that the doctrine of certainty can appropriately be applied to legislative powers as it is applicable to judicial pronouncements. Their Lordships have further held that this must not be understood to mean that the power of the legislature to amend the rules is restricted by judicial pronouncements, but what is being impressed upon the legislature is that the rules of the present kind should not be amended so frequently that no established practice or settled impression may be formed in the minds of the employees. Their Lordships have held as under: 13 “30. First and foremost, we have to consider the nature of the changes in the Allotment Rules as approved by this Court, whether such changes are disadvantageous to the government servants and whether they increase the arbitrariness in the implementation of the Allotment Rules. We have already noticed that the rules in force at the relevant time were the subject matter of controversy before the Full Bench of the High Court of Punjab and Haryana and had given rise to filing of a Special Leave Petition (converted into C.A. No. 8890 of 1996). It was in this petition that the draft rules had been filed, approved with certain amendments, as directed by this Court and thereafter published vide Notification dated 28th June, 1996, to finally result in the Allotment Rules.

31. These rules were also subjected to different amendments from time to time and major amendments were carried out in the years 1997, 1998, 2004, 2007 and

2009. Besides these, certain guidelines were also framed which became part of the Allotment Rules. These amendments related to changes in the definition clauses as well as the substantive rules. For example, Rule 7, which is related to the earmarking of houses was amended on 7th May, 1998; Rule 8, concerning the Controlling Authority was amended vide Notification dated 2nd June, 1997; Rule 11, which related to Out-of-Turn Allotment, was amended vide Notifications in 1997 and again vide Notification dated 4th August, 2004; Rules 13 and 14 relating to the period for which allotment subsists and concessional period for further retention and fixation of licence fee were amended by different amendments including those dated 17th December, 2009 and 11th October, 2007 respectively.

32. These amendments have to be examined in light of the fact that this Court granted leave vide its judgment dated 7th May, 1996 to the Chandigarh Administration to amend the rules, as and when it considered such amendment necessary. The leave granted by this Court obviously means that the amendment should be necessity based and not be intended to introduce the element of arbitrariness or discrimination in the rules and resultantly in the allotment of the houses to the government officers/ officials. 14

34. As already noticed, fairness in State action is the essence of proper governance. Where the authorities exercise their powers under the rules, they are expected to exercise the discretion vested in them fairly and with the intention to attain a balance between exercise of discretionary power and the larger public interest sought to be achieved by such discretion. Arbitrariness or irresponsible exercise of the power vested in the authorities, has been a matter of great concern before the courts. The Full Bench of High Court of Punjab and Haryana had declared Rule 7 of the Allotment Rules of 1972 as unconstitutional and being without any proper guidelines because the possibility of exercising unguided power resulted in arbitrariness on various occasions. Though that judgment had been set aside by this Court, surely it was still expected that the draft rules, as approved by this Court, would be acted upon fairly and without arbitrariness. However, the matters have not ended with implementation of the new rules and, therefore, litigation in respect of these rules has been a continuous affair. The matter, which can be said to be of some public importance is not a question of the interpretation of the Allotment Rules as such, but is one of the manner of exercise of power with reference to the Allotment Rules.

51. We have issued the above directions being conscious of the fact that the Allotment Rules are in place and that the authorities are acting fairly and judiciously. The directions that we have issued are primarily explanatory and are intended to narrow the scope of discretion exercisable by the concerned authorities. It is a settled canon of Administrative Jurisprudence that wider the power conferred, more onerous is the responsibility to ensure that such power is not exercised in excess of what is required or relevant for the case and the decision. We expect the authorities to be consistent in their decisions and bring certainty to the Allotment Rules. This can only be done by making fair, judicious and reasoned decisions on the one hand and refraining from amending the Allotment Rules except in exceptional and extraordinary circumstances on the other.

52. The Doctrine of Certainty can appropriately be applied to legislative powers as it is applicable to judicial 15 pronouncements. We must not be understood to say that the power of the Legislature to amend rules is restricted by judicial pronouncements, but we want to impress upon the Legislature that the rules of the present kind should not be amended so frequently that no established practice or settled impression may be formed in the minds of the employees. Where the employer has limited resources, there the employee has a legitimate expectation of being dealt with fairly in relation to allotment to such government accommodation.”

17. It is evident from the minutes of meeting held on 9.6.2011 that oil and marketing companies were directed to submit to the Ministry within two weeks a proposal on the volume norms for setting up of new ROs in different class of markets. The oil marketing companies were also directed to work out the ‘Marketing Margin’ to be used for calculation of IRR, which was required to be approved by their respective Board. It was also highlighted that OMCs were to ensure that there is some sort of uniformity in the figure adopted by the oil marketing companies. The cost was to be included for a new RO at similar levels and approved by the Boards. The OMCs were required to be put in place a mechanism for fixing of accountability of the officer responsible for conducting feasibility study and approving the location of RO in cases where the actual sales volume falls substantially short of the projected sales volume after stabilization of 16 sales, after a period of one year from commissioning. The OMCs were further directed to submit industry proposal for amendments in the guidelines appointment of service provider of temporary COCOs. Neither respondent No.1 nor oil marketing companies has placed any tangible material on record to substantiate that within two weeks a proposal on the volume norms for setting up of new ROs was submitted to the Ministry and the steps, enumerated in the meeting held on 9.6.2011, were taken. The action, which has been taken is that the guidelines which have already been issued on 6.4.2011 and

25.4.2011, have been put in abeyance vide communication dated 25.8.2011. It was incumbent upon respondents No.2 to 4 to take steps to facilitate final decision by the Ministry of Petroleum and Natural Gas the manner in which the new retail outlets were to be allotted. It was incumbent upon respondent No.1 to ensure that the action proposed to be taken as per meeting held on 9.6.2011 was taken to its logical end. There had been no certainty the manner in which the opening of new retail outlets have been frozen and thereafter the same was lifted from time to time. The inconsistency while taking decision by the Ministry of 17 Petroleum and Natural Gas has led to uncertainty in the manner in which new retail outlets are to be opened. It is not the case of the petitioner association that new retail outlets are not to be opened but its primary contention is that the new retail outlets which are to be opened should be economically viable after preparing comprehensive mechanism by respondent No.1.

18. Petitioner association only wants that the logical criteria, i.e. objective of growth rate, present sale and future growth potential etc. should be taken into consideration for opening new retail outlets. There should not be any over lapping the manner in which the retail outlets are opened by the oil marketing companies. There has to be uniformity in the entire set up the manner in which new retail outlets are opened and at the same time the existing retail outlets are not made unviable. It is in these circumstances that the meeting was held on 9.6.2011 whereby the oil and marketing companies have been directed to furnish the proposal on the volume norms for setting up of new retail outlets in different class of markets. The oil and marketing companies have been directed to work out the ‘Marketing Margin’ to be used for 18 calculation of IRR, which was required to be approved by their respective Boards. The meeting has also highlighted that the oil marketing companies should place a mechanism for fixing of accountability of the officer responsible for conducting feasibility study and approving the location of RO in cases where the actual sales volume falls substantially short of the projected sales volume after stabilization of sales. The Ministry of Petroleum and Natural Gas is seized of the matter, but till date nothing concrete has been done the manner in which new retail outlets are to be opened. It is high time that respondent No.1 takes a conscious decision to regulate the retail outlets throughout the country to remove uncertainty.

19. Respondents No.2 to 4 were directed by this Court to make available the particulars pertaining to the constitution of Petroleum and Natural Gas Regulatory Board and its powers and functions on

9.3.2011. Affidavit was filed in compliance to order dated 9.3.2011 by Piyush Mittal at page 248 of the paper book. According to the affidavit, the Petroleum and Natural Gas Regulatory Board (PNGRB) was constituted under the Petroleum and Natural Gas Regulatory Board Act, 2006 (hereinafter referred to as 19 ‘Act’ for brevity sake) and was notified on

31.3.2006. Thereafter, the Petroleum and Natural Gas Regulatory Board was added as respondent No.9. Respondent No.9 has filed detailed reply at page 258 of the paper book. According to the counter-affidavit filed by respondent No.9, petroleum products were not notified by the Union of India. Respondent No.9 has sought direction to respondent No.1 to notify the petroleum products under sections 11 (f) and 51 (a) of the Act. It is further averred that many reminders have been sent to the Ministry but no action has been taken by the concerned Ministry.

20. Respondent No.1 has filed response to affidavit filed by respondent No.9 at page 282 of the paper book. According to respondent No.1, the issue of notification of petroleum products is a policy matter and the Ministry shall take a decision for notification of the same in due course of time. The copy of the Act was also placed on record vide Annexure R-1. Respondent No.1 has also filed supplementary affidavit on 22.2.2012. The stand of respondent No.1 in supplementary affidavit that considering volatility of the international oil prices and in view of the Government’s commitment to provide essential 20 fuels to the common man at affordable prices, the issue of notifying petroleum, petroleum products and natural gas under the Act, being a policy matter, would be considered by the Government at an appropriate time.

21. The Parliament has enacted the Act called “The Petroleum and Natural Gas Regulatory Board Act,

2006. The following are the statement of objects and reasons: “An Act to provide for the establishment of Petroleum and Natural Gas Regulatory Board to regulate the refining, processing, storage, transportation, distribution, marketing and sale of petroleum, petroleum products and natural gas excluding production of crude oil and natural gas so as to protect the interests of consumers and entities engaged in specified activities relating to petroleum, petroleum products and natural gas and to ensure uninterrupted and adequate supply of petroleum, petroleum products and natural gas in all parts of the country and to promote competitive markets and for matters connected therewith or incidental thereto.”

22. According to section 1 (3), the Act would force on such date as the Central Government may notify in the Official Gazette provided that different dates may be appointed for different provisions of this Act and any reference to the coming into force of that provision. The Act applies to refining, processing, storage, transportation, distributing, marketing and sale of petroleum, petroleum products 21 and natural gas excluding production of crude oil and natural gas. Section 2 is dictionary clause. Section 2 (d) defines “authorized entity”, 2 (e) defines “auto liquefied petroleum gas” 2 (u) defines “liquefied petroleum gas”, 2 (za) defines “natural gas”, 2 (zc) defines “notified petroleum, petroleum products and natural gas” and to mean such petroleum, petroleum products and natural gas as the Central Government may notify from time to time after being satisfied that it is necessary or expedient or to do for maintaining or increasing their supplies or for securing their equitable distribution or ensuring adequate availability and 2 (zd) defines “oil company”. Chapter-II of the Act deals with Petroleum and Natural Gas Regulatory Board. Section 3 provides for establishment and incorporation of the Board. The Board, as noticed hereinabove, has already been constituted. The functions of the Board are enumerated under section 11. Section 15 talks of registration of entity. Settlement of dispute is provided under Chapter V of the Act. Chapter VI provides for Appellate Tribunal. Section 42 empowers the Central Government to issue directions. The Board can make regulations under section 61. 22

23. Ms. Jyotsana Rewal Dua has strenuously argued that despite the Board being constituted under section 3 of the Act, petroleum, petroleum products and natural gas under sections 11 (f) and 15 (a) of the Act has not been notified. According to her, the notification ought to have been issued by now.

24. Mr. Sandeep Sharma, learned Assistant Solicitor General of India has strenuously argued that the issue of notifying petroleum, petroleum products and natural gas is a policy matter and the same is also dependent on the volatility of the international oil prices. According to him, the decision shall be taken for issuance of notification in due course of time.

25. It is amply clear from the statement of objects and reasons and preamble of the Act that it has been enacted for the establishment of Petroleum and Natural Gas Regulatory Board to regulate the refining, processing, storage, transportation, distribution, marketing and sale of petroleum, petroleum products and natural gas excluding production of crude oil. According to sub-section (f) of section 11, in respect of notified petroleum, petroleum products and natural gas, the Board shall: i) “ensure adequate availability; 23 ii) ensure display of information about the maximum retail process fixed by the entity for consumers at retail outlets; iii) monitor prices and take corrective measures to prevent restrictive trade practice by the entities; iv) secure equitable distribution for petroleum and petroleum products; v) provide, by regulations, and enforce, retail service obligations for retail outlets and marketing service obligations for entities; vi) monitor transportation rates and take corrective action to prevent restrictive trade practice by the entities”.

26. Similarly, section 15 provides that every entity desirous of: a. “marketing any notified petroleum or petroleum products or natural gas; or b. establishing or operating a liquefied natural gas terminal; or c. establishing storage facilities for petroleum, petroleum products or natural gas exceeding such capacity as may be specified by regulations , and fulfilling the eligibility conditions as may be prescribed shall make an application to the Board for its registration under this Act. However, registration under this Act shall be required for any entity carrying on any activity referred to in clause (a) or clause (b) or clause (c) immediately before the appointed day, but it is required to inform the Board about such activity within six months from the appointed day. The application is required to be made in prescribed proforma and the Board after making 24 such enquiry and subject to such terms and conditions as it may specify, grant a certificate of registration to the entity allowing to commence and carry on the activity referred to in clause (a) or clause (b) or clause (c) of sub-section (1) of section 15. The Board may, by order, suspend or cancel a certificate of registration granted under sub-section (3) in such manner as may be determined by regulations. However, petroleum, petroleum products and natural gas have not been notified under the Act. The commencement of the Act is conditional legislation.

27. The majority view of their Lordships of the Hon’ble Supreme Court in A.K. Roy versus Union of India and others, (1982) 1 SCC 270 is that court cannot issue a mandamus directing the Executive to enforce the provision if not done within reasonable time. Their Lordships have held as under: “47. The Amendment Act may provide that the amendment introduced by it shall come into force immediately upon the President giving his assent to the Bill or it may provide that the amendment shall come into force on a future date. Indeed, no objection can be taken to the Constituent body itself appointing a specific future date with effect from which the Amendment Act will come into force; and if that be so, different dates can be appointed by it for bringing into, force different provisions of the Amendment Act. The point of the matter is that the Constitution standing amended in accordance with the terms of the Bill and the amendment thus introduced into the Constitution coming 25 into force are two distinct things Just as a law duly passed by the Legislature can have no effect unless it comes or is brought into force, similarly, an amendment of the Constitution can have no effect unless it comes or is brought into force. The fact that the Constituent body may itself specify a future date or dates with effect from which the Amendment Act or any of its provisions will come into force shows that there is no antithesis between Article 368 (2) of the Constitution and S. 1 (2) of the 44th Amendment Act. The expression of legislative or constituent will as regards the date of enforcement of the law or Constitution is an integral part thereof. That is why it is difficult to accept the submission that, contrary to the expression of the constituent will, the amendments introduced by the 44th Amendments Act came into force on April 30, 1979 when the President gave his assent to that Act. The true position is that the amendments introduced by the 44th Amendment Act did not become a part of the Constitution on April 30, 1979. They will acquire that status only when the Central Government brings them into force by issuing a notification under S. 1 (2) of the Amendment Act.

48. The next question for consideration is whether S. 1 (2) of the 44th Amendment Act is ultra vires the power conferred on' the Parliament by Article 368 to amend the Constitution. The argument is that the constituent power must be exercised by the constituent body itself and it cannot be delegated by it to the executive or any other agency. For determining this question, it is necessary to bear in mind that by 'constituent power' is meant the power to frame or amend the Constitution. The power of amendment is conferred upon the Parliament by Article 368 (1), which provides that the Parliament. may in exercise of its constituent power amend by way of addition, variation or repeal any provision of the Constitution in accordance with the procedure laid down in that article. The power thus conferred on the Parliament is plenary subject to the limitation that it cannot be exercised so as to alter the basic structure or framework of the Constitution. It is well settled that the power conferred upon the Parliament by Article 245 to make laws is plenary within the field of legislation upon which that power can operate. That power. by the terms of Article 245, is subject only to the provisions 26 of the Constitution. The constituent power, subject to the limitation aforesaid, cannot be any the less plenary than the legislative power, especially when the power to amend the Constitution and the power to legislate are conferred on one and the same organ of the State, namely, the Parliament. The Parliament may have to follow a different procedure while exercising its constituent power under Article 368 than the procedure which it has to follow while exercising its legislative power under Article 245. But the obligation to follow different procedures while exercising the two different kinds of power cannot make any difference to the width of the power. In either event, it is plenary, subject in one case to the constraints of the basic structure, of the Constitution and in the other, to the provisions of the Constitution.

49. The contention raised by the petitioners, that the power to appoint a date for bringing into force a constitutional amendmeat is a constituent power and therefore it cannot be delegated to an outside agency is without any force. It is true that the constituent power, that is to say, the power to amend any provision of the Constitution by way of an addition, variation or repeal must be exercised by the Parliament itself and cannot be delegated to an outside agency. That is clear from Article 368 (1) which defines at once the scope of the constituent power of the Parliament and limits that power to the Parliament. The power to issue a notification, for bringing into force the provisions of a constitutional amendment is not a constituent power, because, it does not carry with it the power to amend the Constitution in any manner. It is, therefore, permissible to the Parliament to vest in an outside agency the power to bring a constitutional amendment into force. In the instant case, that power is conferred by the Parliament on another organ of the State, namely the executive, which is responsible to the Parliament for all its actions. The Parliament does not irretrievably lose its power to bring the amendment into force by reason of the empowerment in favour of the Central Government to bring it into force. If the Central Government fails to do what, according to the Parliament, it ought to have done, it would be open to the Parliament to delete Section 1 (2) of the 44th Amendment Act by 27 following the due procedure and to bring into force that Act or any, of its provisions.

50. We need not enter into the much debated question relating to the delegation of legislative powers. In The Queen v. Burah, (1878) 5 Ind App 178, the Privy Council upheld the delegated power to bring a law into force in a district and to apply to it, the whole or part of the present or future laws which were in force in other districts. In Russell v. The Queen, (1882) 7 AC 829, it upheld the provision that certain parts of an Act should come into force only on the petition of a majority of electors. In Hodge v. The Queen, (1883) 9 AC 117, it upheld the power conferred upon. a Board to create offences and annex penalties. The American authorities on the question of the validity of delegated powers need not detain us because, the theory that a legislature is a delegate of the people and therefore, it cannot delegate its power to another does not hold true under our Constitution. The executive, under our Constitution, is responsible to the legislature and is not independent of it as in the United States. The three Privy Council decisions to which we have referred above were considered by this Court in Re Delhi Laws Act case, 1951 SCR 747 : (AIR 1951 SC 332), which is considered as a leading authority on the question of delegated legislation. The reference made in that case by the President under Article 143 (1) of the Constitution to the Supreme Court, in regard to the validity of certain laws, was necessitated by the decision of the Federal Court in Jatindra Nath Gupta v. State of Bihar, 1949 FCR 595 : (AIR 1949 FC 175), in which it was held by the majority that the power to extend the operation of an Act for a further period of one year with such modification as may be specified was a legislative power and that the provisions of S. 1 (3) of that Act which delegated that power to an outside agency was bad. One of the questions which was referred to this Court in Delhi Laws Act case was whether Section 7 of the Delhi Laws Act, 1912 was ultra vires the Legislature which passed that Act. That section provided that the Provincial Government may by a notification extend with such restrictions and modifications as it thinks fit to the Province of Delhi or any part thereof any enactment which is in force in any part of British India at the date of such notification. The difficulty of 28 discovering the ratio of the seven judgments delivered in the Delhi Laws Act case is well known. There is, however, no difference amongst the learned Judges in their perception and understanding of what was actually decided in the three Privy Council cases to which we have referred and which were discussed by them. They read the Privy Council decision as laying down that conditional legislation is permissible whereby the legislature entrusts to an outside agency the discretionary power to select the time or place to enforce the law. As stated by Shri H. M. Seervai in his "Constitutional Law of India" (2nd edn. at p. 1203): "The making of laws is not an end in itself, but is a means to an end, which the legislature desires to secure. That end may be secured directly by the law itself. But there are many subjects of legislation in which the end is better secured by extensive delegation of legislative power". There are practical difficulties the enforcement of contemporaneously with their enactment as also in their uniform extension to different areas. Those difficulties cannot be foreseen at the time when the laws are made. It, therefore, becomes necessary to leave to the judgment of an outside agency the question as to when the law should be brought into force and to which areas it should be extended from time to time. What is permissible to the Legislature by way of conditional legislation cannot be considered impermissible to the Parliament when, in the exercise of its constituent power, it takes the view that the question as regards the time of enforcement of a constitutional amendment should be left to the judgment of the executive. We are, therefore, of the opinion that Section 1 (2) of the 44th Amendment Act is not ultra vires the power of amendment conferred upon the Parliament by Article 368 (1) of the Constitution.

51. We may now take up for consideration the question which was put in the fore front by Dr. Ghatate, namely, that since the Central Government has failed to exercise its power within a reasonable time, we should issue a mandamus calling upon it to discharge its duty without any further delay. Our decision on this question should not be construed as putting a seal of approval on the delay caused by the Central Government in bringing the provisions of S. 3 of the 44th Amendment Act into force. 29 That Amendment received the assent of the President on April 30, 1979 and more than two and half years have already gone by without the Central Government issuing a notification for bringing Section 3 of the Act into force. But we find ourselves unable to intervene in a matter of this nature by issuing a mandamus to the Central Government obligating it to bring the provisions of Section 3 into force. The Parliament having left to the unfettered judgment of the Central Government the question as regards the time for bringing the provisions of the 44th Amendment into force, it is not for the Court to compel the Government to do that which, according to the mandate of the Parliament, lies in its discretion to do when it considers it opportune to do it. The executive is responsible to the Parliament and if the Parliament considers that the executive has betrayed its trust by not bringing any provision of the Amendment into force, it can censure the executive. It would be quite anomalous that the inaction of the executive should have the approval of the Parliament and yet we should show our disapproval of it by issuing a mandamus. The Court's power of judicial review in such cases has to be capable of being exercised both positively and negatively, if indeed it has that power: positively, by issuing a mandamus calling upon the Government to act and negatively by inhibiting it from acting. If it were permissible to the Court to compel the Government by a mandamus to bring a constitutional amendment into force on the ground that the Government has failed to do what it ought to have done, it would be equally permissible to the Court to prevent the Government from acting, on some such ground as that, the time was not yet ripe for issuing the notification for bringing the Amendment into force. We quite see that it is difficult to appreciate what practical difficulty can possibly prevent the Government from bringing into force the provisions of S. 3 of the 44th Amendment, after the passage of two and half years. But the remedy, according to us, is not the writ of mandamus. If the Parliament had laid down an objective standard or test governing the decision of the Central Government in the matter of enforcement of the Amendment, it may have been possible to assess the situation judicially by examining the causes of the inaction of the Government in order to see how far they bear upon 30 the standard or test prescribed by the Parliament. But, the Parliament has left the matter to the judgment of the Central Government without prescribing any objective norms. That makes it difficult for us to substitute our own judgment for that of the Government on the question whether S. 3 of the Amendment Act should be brought into force. This is particularly so when the failure of the Central Government to bring that section into force so far can be no impediment in the way of the Parliament in enacting a provision in the National Security Act on the lines of that section. In fact, the Ordinance rightly adopted that section as a model and it is the Act which has wrongly discarded it. It is for these reasons that we are unable to accept the submission that by issuing a mandamus, the Central Government must be compelled to bring the provisions of S. 3 of the 44th Amendment into force. The question as to the impact of that section which, though a part of the 44th Amendment Act, is not yet a part of the Constitution, will be considered later when we will take up for examination the argument as regards the reasonableness of the procedure prescribed by the Act.”

28. The minority view in the case supra has held that the Central Government was under obligation to bring into operation the provisions of the Act within a reasonable time. Their Lordships have held as under: “112. The Constitution (Forty-fourth Amendment) Act, 1978 received assent of the President on April 30, 1979. Article 368(2) says. inter alia, that after a Bill for the amendment of the Constitution is passed in each House of Parliament by the prescribed majority "it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended accordance with the terms of the Bill". Section 1 (2) of the Constitution (Forty-fourth Amendment) Act states that the Act "shall come into force on such date as the Central Government may, by notification in the Official Gazette, 31 appoint", and that "different dates may be appointed for different provisions of this Act". Section 3 of the Amendment Act substitutes a new clause for the existing Clause (4) of Article 22 of the Constitution which provides inter alia for, the Constitution of Advisory Boards. The relevant part of S. 3 reads as follows: "Amendment of Article 22. - In Article 22 of the Constitution, - (a) for Clause (4), the following clause shall be substituted, namely : (4) No law providing for preventive detention shall authorise the detention of a person for a longer period than two months unless an Advisory Board constituted in accordance with the recommendations of the Chief Justice of the appropriate High Court has reported before the expiration of the said period of two months that there is in its opinion sufficient cause for such detention : Provided that an Advisory Board shall consist of a, Chairman and not less than two other members, and the Chairman shall be a serving Judge of the appropriate High Court and the other members shall be serving or retired Judges of any High Court." The provision requiring the Advisory Board to be constituted in accordance with the recommendations of the Chief Justice of the appropriate High Court and that the Chairman of the Advisory Board shall be a serving Judge of the High Court and the other members of the Board shall be serving or retired Judges of any High Court is absent in the existing Clause (4) under which persons who are only qualified to be appointed as Judges of a High Court are eligible to be members of the Advisory Board. Many of the provisions of the Act were brought into force on different dates in the year 1979 but the provisions of Section 3 were not given effect to for more than one year and seven months when the hearing of these writ petitions commenced on December 9, 1980. Now though more than two and a half years have passed the provisions of S. 3 have not yet been brought into force. The question is whether under S. 1 (2) the Central Government had the freedom to bring into force any of the provisions of the Amendment Act at any time it liked. I do not think that Section 1 (2) can be 32 construed to mean that Parliament left it to the unfettered discretion or judgment of the Central Government when to bring into force any provision of the Amendment Act. After the Amendment Act received the President's assent, the Central Government was under an obligation to bring into operation the provisions of the Act within a reasonable time; the power to appoint dates for bringing into force the provisions of the Act was given to the Central Government obviously because it was not considered feasible to give effect to all the provisions immediately. After the Amendment Act had received the President's assent the Central Government could not in its discretion keep it in a state of suspended animation for any length of time it pleased. That Parliament wanted the provisions of the Constitution (Forty-fourth Amendment) Act, 1978 to be made effective as early as possible would appear from its Objects and Reasons. The following extract from the Objects and Reasons clearly discloses a sense of urgency : "Recent experience has shown that the fundamental rights, including those of life and liberty, granted to citizens by the Constitution are capable of being taken away by a transient majority. It is, therefore, necessary to provide adequate safeguards against the recurrence of such a contingency in the future and to ensure to the people themselves an effective voice in determining the form of government under which they are to live. This is one of the primary objects of this Bill. x x x x x x x As a further check against the misuse of the emergency provisions and to put the right to life and liberty on a secure footing, it would be provided that the power to suspend the right to move the Court for the enforcement of a fundamental right cannot be exercised in respect of the fundamental right to life and liberty. The right to liberty is further strengthened by the provision that a law for preventive detention cannot authorise, in any case, detention for a longer period than two months, unless an Advisory Board has reported that there is sufficient cause for such detention. An additional safeguard would be provided by the requirement that the Chairman of an Advisory Board shall be a serving Judge of the appropriate High Court and that the Board shall be constituted in 33 accordance with the recommendations of the Chief Justice of that High Court."

29. However, their Lordships of the Hon’ble Supreme Court in Aeltemesh Rein, Advocate Supreme Court of India versus Union of India and others, (1988) 4 SCC 54 have held that discretion vested by statute on Government to bring into force statutory provisions from specified dates should be exercised in a just, reasonable and fair way. Their Lordships have further held that in case of long inaction on the part of the Government, court may issue writ in the nature of mandamus directing the Government to consider within a reasonable time whether it should bring the provisions into force or not. Their Lordships have taken into consideration paras 51 and 52 of A.K. Roy versus Union of India, cited hereinabove. Their Lordships have held as under: “5. It is no doubt true that the Central Government has been given the power by Parliament to appoint the date on which any of the provisions of the Act shall come into force by sub-section (3) of section 1 of the Act and the said provision does not lay down any objective standards for the determination of the date on which any of the specific provision of the Act should be brought into force. The question for consideration is whether this Court can issue a writ in the nature of mandamus to the Central Government to bring section 30 of the Act into force. Dealing with a similar question a Constitution Bench of this Court in A. K. 34 Roy v. Union of India, (1982) 2 SCR 272 : (AIR 1982 SC 710) has taken the view that a writ in the nature of mandamus directing the Central Government to bring a statute or a provision in a statute into force in exercise of powers conferred by Parliament in that statute cannot be issued. Chandrachud. C.J., who spoke for the majority of the Constitution Bench has observed at pages 314 to 316 (of SCR) : (at pages 732 to 733 of AIR) of the Report thus: "But we find ourselves unable to intervene in a matter of this nature by issuing a mandamus to the Central Government obligating it to bring the provisions of section 3 into force. The Parliament having left to the unfettered judgment of the Central Government the question as regards the time for bringing the provisions of the 44th Amendment into force, it is not for the Court to compel the Government to do that which, according to the mandate of the Parliament, lies in its discretion to do when it considers it opportune to do it. The executive is responsible to the Parliament and if the Parliament considers that the executive has betrayed its trust by not bringing any provision of the Amendment into force, it can censure the executive. It would be quite anomalous that the inaction of the executive should have the approval of the Parliament and yet we should show our disapproval of it by issuing a mandamus.....................But the Parliament has left the matter to the judgment of the Central Government without prescribing any objective norms. That makes it difficult for us to substitute our own judgment for that of the Government on the question whether section 3 of the Amendment Act should be brought into force..............It is for these reasons that we are unable to accept the submission that by issuing a mandamus, the Central Government must be compelled to bring the provisions of section 3 of the 44th Amendment into force...........If only the Parliament were to lay down an objective standard to guide and control the discretion of the Central Government in the matter of bringing the various provisions of the Act into force, it would have been possible to compel the Central Government by an appropriate writ to discharge the function assigned to it by the Parliament."

6. The effect of the above observations of the Constitution Bench is that it is not open to this Court to 35 issue a writ in the nature of mandamus to the Central Government to bring a statute or a statutory provision into force when according to the said statute the date on which it should be brought into force is left to the discretion of the Central Government. As long as the majority view expressed in the above decision holds the field it is not open to this Court to issue a writ in the nature of mandamus directing the Central Government to bring section 30 of the Act into force. But we are of the view that this decision does not come in the way of the Supreme Court issuing a writ in the nature of mandamus to the Central Government to consider whether the time for bringing section 30 of the Act into force has arrived or not. Every discretionary power vested in the Executive should be exercised in a just, reasonable and fair way. That is the essence of the rule of law. The Act was passed in 1961 and nearly 27 years have elapsed since it received the assent of the President of India. In several conferences and meeting's of lawyers resolutions have been passed in the past requesting the Central Government to bring into force section 30 of the Act. It is not clear whether the Central Government has applied its mind at all to the question whether section 30 of the Act should be brought into force. In these circumstances, we are of the view that the Central Government should be directed to consider within a reasonable time the question whether it should bring section 30 of the Act into force or not. If on such consideration the Central Government feels that the prevailing circumstances are such that section 30 of the Act should not be brought into force immediately it is a different matter. But it cannot be allowed to leave the matter to lie over without applying its mind to the said question. Even though the power under section 30 of the Act is discretionary, the Central Government should be called upon in this case to consider the question whether it should exercise the discretion one way or the other having regard to the fact that more than a quarter of century has elapsed from the date on which the Act received the assent of the President of India. The learned Attorney General of India did not seriously dispute the jurisdiction of this Court to issue the writ in the manner indicated above.” 36

30. Their Lordships of the Hon’ble Supreme Court in Union of India versus Shree Gajanan Maharaj Sansthan, (2002) 5 SCC 44 have held that no writ of mandamus can be issued to the Government to consider whether the provision should be enforced and when the Government would be able to do it. More so where the data placed before court showed that the Government was alive to the problem but in the peculiar circumstances had not been able to take a decision. Their Lordships have held as under: “7. In A.K. Roy v. Union of India & Ors., [1982 (1) SCC 271], a contention was raised that despite the provisions of section 1 (2) of the 44th Constitution (Amendment) Act, 1978, Article 22 of the Constitution. stood amended on 30/4/1979 when the amendment Act received the assent of the President and there was nothing more that remained to be done by the executive except fixing a date for the commencement of the Act as provided under section 1 (2) thereof. According to the said contention, section 1(2), which is misconceived and abortive, must be ignored and severed from the rest of the amendment Act. This Court observed that no mandamus could be issued to the executive directing it to commence the operation of the enactment; that such a direction should not be construed as any approval by the court, of the failure on the part of the central government for a long period to bring the provisions of the enactment into force; that in leaving it to the judgment of the central government to decide as to when the various provisions of the enactment should be brought into force, the Parliament could not have intended that the central government may exercise a kind of veto over its constituent will by not ever bringing the enactment or some of its provisions into force; that if only the Parliament were 37 to lay down an objective standard to guide and control the discretion of the central government in the matter of bringing the various provisions of the Act into force, it would have been possible to compel the central government by an appropriate writ to discharge the function assigned to it by the Parliament. It was further contended that an amendment can be bad because it vests an uncontrolled power in the Executive in bringing an enactment into operation. This Court, however, noticed that such power cannot be held to give an uncontrolled power to the executive inasmuch as there are practical difficulties in the enforcement of laws and those difficulties cannot be foreseen. It, therefore, became necessary to leave the judgment to the executive as to when the law should be brought into force. When enforcement of a provision in a statute is left to the discretion of the government without laying down any objective standards no writ of mandamus could be issued directing the government to consider the question whether the provision should be brought into force and when it can do so. Delay in implementing the will of the Parliament may draw adverse criticism but on the data placed before us, we cannot say that the government is not alive to the problem or is desirous of ignoring the will of the Parliament.”

31. In the instant case, respondent No.1 has not placed on record sufficient material why till date, the notification has not been issued.

32. Their Lordships of the Hon’ble Supreme Court in Common Cause versus Union of India and others, (2003) 8 SCC 250 have held that where the Government was alive to the problem and had not ignored the will of Parliament but on representation from persons likely to be affected by the enforcement of the Act found that it was necessary to carry out certain 38 amendments to the Act before its enforcement and introduced the amending Bill in Parliament but due to various difficulties consideration of the Bill by Parliament was getting delayed, no mandamus could be issued to the Government to notify the date to bring the Act into force. Their Lordships have held as under: “27. From the facts placed before us it cannot be said that Government is not alive to the problem or is desirous of ignoring the will of the Parliament. When the legislature itself had vested the power in the Central Government to notify the date from which the Act would come into force, then, the Central Government is entitled to take into consideration various facts including the facts set out above while considering when the Act should be brought into force or not. No mandamus can be issued to the Central Government to issue the notification contemplated under Section 1(3) of the Act to bring the Act into force, keeping in view the facts brought on record and the consistent view of this Court.”

33. This is not the situation in the present case. In the case in hand, the Board has already been constituted on 25.6.2007 and the Central Government has appointed 1.10.2007, as the date on which the provisions of the Act, except section 16 thereof, has come into force. No convincing and cogent reasons have been placed on record why the notification has not been issued. Respondent No.1 has not placed on record any tangible evidence to establish that any 39 representations were pending before it not to notify the petroleum, petroleum products and natural gas.

34. Their Lordships of the Hon’ble Supreme Court in State of Tamil Nadu and others versus K. Shyam Sunder and others, (2011) 8 SCC 737 have dealt with the principles of conditional legislation. Their Lordships have further held that though The Statement of Objects and Reasons appended to the Bill is not admissible as an aid to the construction of the Act to be passed, but it can be used for limited purpose for ascertaining the conditions which prevailed at that time which necessitated the making of the law, and the extent and urgency of the evil, which it sought to remedy. Their Lordships have further held that the Statement of Objects and Reasons may be relevant to find out what is the objective of any given statute passed by the legislature. Their Lordships have held as under: “44. As the legislature cannot carry out each and every function by itself, it may be necessary to delegate its power for certain limited purposes in favour of the executive. Delegating such powers itself is a legislative function. Such delegation of power, however, cannot be wide, uncanalised or unguided. The legislature while delegating such power is required to lay down the criteria or standard so as to enable the delegatee to act within the framework of the statute. The principle on which the power of the legislature is to be exercised is required to be disclosed. It is also trite that 40 essential legislative functions cannot be delegated. Delegation cannot be extended to "repealing or altering in essential particulars of laws which are already in force in the area in question". (Vide: Re: Article 143, Constitution of India and Delhi Laws Act (1912) etc., AIR 1951 SC 332).

45. The legislature while delegating such powers has to specify that on certain data or facts being found and ascertained by an executive authority, the operation of the Act can be extended to certain areas or may be brought into force on such determination which is described as conditional legislation. While doing so, the legislature must retain in its own hands the essential legislative functions and what can be delegated is the task of subordinate legislation necessary for implementing the purpose and object of the Act. Where the legislative policy is enunciated with sufficient clearness or a standard is laid down, the courts should not interfere. What guidance should be given and to what extent and whether guidance has been given in a particular case at all depends on consideration of the provisions of the particular Act with which the Court has to deal including its preamble. (See: In Re: Delhi Laws Act (supra); The Municipal Corporation of Delhi v. Birla Cotton, Spinning and Weaving Mills, Delhi & Anr., AIR 1968 SC 1232).

46. In Rajnarain Singh v. Chairman, Patna Administration Committee, Patna & Anr., AIR 1954 SC 569, a Constitution Bench of this Court explained the ratio of the judgment in re: Delhi Laws Act (supra) observing as under: "In our opinion, the majority view was that an executive authority can be authorised to modify either existing or future laws but not any essential feature. Exactly, what constitutes an essential feature cannot be enunciated in general terms, and there was some divergence of view about this in the former case, but this much is clear from the opinions set out above: it cannot include a change of policy." (Emphasis added)

47. In Bangalore Woollen, Cotton and Silk Mills Co. Ltd., Bangalore v. Corporation of the City of Bangalore by its Commissioner, Bangalore City, AIR 1962 SC 1263, this Court dealt with a similar issue in a case where the 41 legislature had conferred power upon the Municipal Corporation to determine on what other goods and under what conditions the tax should be levied. In that case the legislature had prepared a list of goods which could be subjected to tax and the rate had also been fixed in addition thereto. The powers had been conferred on the Municipal Corporation. This Court therefore came to the conclusion that it was not a case of excessive delegation which may be held to be bad in view of the judgment in Hamdard Dawakhana v. Union of India, AIR 1960 SC 554, rather it was a case of conditional legislation.

48. In Basant Kumar Sarkar & Ors. v. The Eagle Rolling Mills Ltd. & Ors., AIR 1964 SC 1260, this Court examined the issue of extension of Employees State Insurance Act, i.e. temporal application of employees insurance legislation and held that it was a case of conditional legislation and not of excessive delegation because there was no element of delegation therein at all. The Court held as under: "Thus, it is clear that when extending the Act to different establishments, the relevant Government is given the power to constitute a Corporation for the administration of the scheme of Employees State Insurance. The course adopted by modern legislatures in dealing with welfare scheme has uniformly conformed to the same pattern. The legislature evolves a scheme of socio-economic welfare, makes elaborate provisions in respect of it and leaves it to the Government concerned to decide when, how and in what manner the scheme should be introduced. That, in our opinion, cannot amount to excessive delegation."

49. In view of the above, the law stands crystallised to the effect that in case the legislature wants to delegate its power in respect of the implementation of the law enacted by it, it must provide sufficient guidelines, conditions, on fulfillment of which, the Act would be enforced by the delegatee. Conferring unfettered, uncanalised powers without laying down certain norms for enforcement of the Act tantamounts to abdication of legislative power by the legislature which is not permissible in law. More so, where the Act has already come into force, 42 such a power cannot be exercised just to nullify its commencement thereof.

88. Submissions advanced on behalf of the appellants that it is within the exclusive domain of the legislature to fix the date of commencement of an Act, and court has no competence to interfere in such a matter, is totally misconceived for the reason that the legislature in its wisdom had fixed the dates of commencement of the Act though in a phased manner. The Act commenced into force accordingly. The courts intervened in the matter in peculiar circumstances and passed certain orders in this regard also. The legislature could not wash off the effect of those judgments at all. The judgments cited to buttress the arguments, particularly in A.K. Roy v. Union of India & Anr., AIR 1982 SC 710; Aeltemesh Rein v. Union of India & Ors., AIR 1988 SC 1768; Union of India v. Shree Gajanan Maharaj Sansthan, (2002) 5 SCC 44; and Common Cause v. Union of India & Ors., AIR 2003 SC 4493, wherein it has been held that a writ in the nature of mandamus directing the Central Government to bring a statute or a provision in a statute into force in exercise of powers conferred by Parliament in that statute cannot be issued, stand distinguished.

66. The Statement of Objects and Reasons appended to the Bill is not admissible as an aid to the construction of the Act to be passed, but it can be used for limited purpose for ascertaining the conditions which prevailed at that time which necessitated the making of the law, and the extent and urgency of the evil, which it sought to remedy. The Statement of Objects and Reasons may be relevant to find out what is the objective of any given statute passed by the legislature. It may provide for the reasons which induced the legislature to enact the statute. "For the purpose of deciphering the objects and purport of the Act, the court can look to the Statement of Objects and Reasons thereof". (Vide: Kavalappara Kottarathil Kochuni @ Moopil Nayar v. The States of Madras and Kerala & Ors., AIR 1960 SC 1080; and Tata Power Company Ltd. v. Reliance Energy Ltd. & Ors., (2009) 16 SCC 659).

67. In A. Manjula Bhashini & Ors. (Supra), this Court held as under: "The proposition which can be culled out from the aforementioned judgments is that although the 43 Statement of Objects and Reasons contained in the Bill leading to enactment of the particular Act cannot be made the sole basis for construing the provisions contained therein, the same can be referred to for understanding the background, the antecedent state of affairs and the mischief sought to be remedied by the statute. The Statement of Objects and Reasons can also be looked into as an external aid for appreciating the true intent of the legislature and/or the object sought to be achieved by enactment of the particular Act or for judging reasonableness of the classification made by such Act." (Emphasis added)

68. Thus, in view of the above, the Statement of Objects and Reasons of any enactment spells out the core reason for which the enactment is brought and it can be looked into for appreciating the true intent of the legislature or to find out the object sought to be achieved by enactment of the particular Act or even for judging the reasonableness of the classifications made by such Act.”

35. Accordingly, the Court is of the considered view that after coming into force of the Act, though it is for the Central Government to issue notification for bringing other provisions of the Act force, including to notify the petroleum, petroleum products and natural gas. However, this discretion has to be exercised in judicious manner by taking informed decision. The Act has come into force on 31.3.2006 and the Board stands constituted but the petroleum, petroleum products and natural gas have not been notified. 44

36. Respondent No.1 has only stated, as noticed hereinabove, that it is a policy matter and the final decision for issuance of notification shall be taken in due course of time as per affidavit dated 16.8.2011. Thereafter what has been stated in the affidavit filed on

22.2.2012 is that considering the volatility of the international oil prices and in view of the Government’s commitment to provide essential fuels to the common man at affordable prices, the issue of notifying petroleum, petroleum products and natural gas will be considered at an appropriate time. Every decision has to be taken within reasonable time even if the period is not prescribed.

37. Mr. Sandeep Sharma, learned Assistant Solicitor General of India has argued that it is a policy matter. The policy matter must also conform to the principal Act. The Act has been made to achieve certain aims and objects and the same cannot be rendered otiose by permitting the Central Government to sleep over the matter for indefinite period. There is no merit in the contention of Mr. Sandeep Sharma that the notification has not been issued taking into consideration the volatility in the international oil prices. This issue could always be addressed by the 45 Board, which has been constituted. There is no material placed other than stating that there is volatility in the international oil prices and it is a policy matter.

38. Their Lordships of the Hon’ble Supreme Court in Union of India and others versus Dinesh Engineering Corporation and another, (2001) 8 SCC 491 have held that where the decision of the authority is in regard to a policy matter, the Supreme Court will not ordinarily interfere since these policy matters are taken based on expert of the persons concerned and courts are normally not equipped to question the correctness of a policy decision, but then this does not mean that the courts have to abdicate their right to scrutinize whether the policy in question is formulated keeping in mind all the relevant facts and the said policy can be held to be beyond the pale of discrimination or unreasonableness, bearing in mind the material on record. Their Lordships have held as under: “12. A perusal of the said letters shows that the Board adopted this policy keeping in mind the need to assure reliability and quality performance of the governors and its spare parts in the context of sophistication, complexity and high degree of precision associated with governors. It is in this background that in para (i) the letter states that the spares should be procured on proprietary basis from EDC. 46 This policy proceeds on the hypothesis that there is no other supplier in the country who is competent enough to supply the spares required for the governors used by the Indian Railways without taking into consideration the fact that the writ petitioner has been supplying these spare parts for the last over 17 years to various Divisions of the Indian Railways which fact has been established by the writ petitioner from the material produced with both before the High Court and this Court and which fact has been accepted by the High Court. This clearly establishes the fact that the decision of the Board as found in the letter dated 23-10- 1992 suffers from the vice of non-application of mind. On behalf of the appellants, it has been very seriously contended before us that the decision vide letter dated 23- 10-1992 being in the nature of a policy decision, it is not open to Courts to interfere since policies are normally formulated by experts on the subjects and the Courts not being in a position to step into the shoes of the experts, cannot interfere with such policy matters. There is no doubt that this Court has held in more than one case that where the decision of the authority is in regard to a policy matter, this Court will not ordinarily interfere since these policy matters are taken based on expert knowledge of the persons concerned and Courts are normally not equipped to question the correctness of a policy decision. But then this does not mean that the Courts have to abdicate their right to scrutinise whether the policy in question is formulated keeping in mind all the relevant facts and the said policy can be held to be beyond the pale of discrimination or unreasonableness, bearing in mind the material on record. It is with this limited object if we scrutinise the policy reflected in the letter dated 23-10-1992, it is seen that the Railways took the decision to create a monopoly on proprietary basis on EDC on the ground that the spares required by it for replacement in the governors used by the Railways required a high degree of sophistication, complexity and precision, and in the background of the fact that there was no party other than EDC which could supply such spares. There can be no doubt that an equipment of the nature of a spare part of a governor which is used to control the speed in a diesel locomotive should be a quality product which can adhere to the strict scrutiny/standards 47 of the Railways, but then the pertinent question is : has the Board taken into consideration the availability or non- availability of such characteristics in the spare parts supplied by the writ petitioner or, for that matter, was the Board alive to the fact that like EDC the writ petitioner was also supplying the spare parts as the replacement parts for the GE governors for the last over 17 years to the various Divisions of the Railways. A perusal of the letter dated 23- 10-1992 does not show that the Board was either aware of the existence of the writ petitioner or its capacity or otherwise to supply the spare parts required by the Railways for replacement in the governors used by it, an ignorance which is fatal to its policy decision. Any decision be it a simple administrative decision or a policy decision, if taken without considering the relevant facts, can only be termed as an arbitrary decision. If it is so then be it a policy decision or otherwise, it will be violative of the mandate of Article 14 of the Constitution.”

39. Their Lordships of the Hon’ble Supreme Court in Delhi Development Authority and another versus Joint Action Committee, Allottee of SFS Flats and others, (2008) 2 SCC 672 have held that broadly, a policy decision is subject to judicial review on the following grounds: a) if it is unconstitutional; b) if it is de hors the provisions of the Act and the regulations; c) if the delegate has acted beyond its power of delegation; d) if the executive policy is contrary to the statutory or a larger policy.

40. In a recent judgment, their Lordships of the Hon’ble Supreme Court in Centre for Public Interest Litigation and others versus Union of India and 48 others, (2012) 3 SCC 1, have held that when it is clearly demonstrated that the policy framed by the State or its agency/instrumentality and/or implementation is contrary to public interest or is violative of the constitutional principles, it is the duty of the Court to exercise its jurisdiction in larger public interest and reject the stock plea of the State that the scope of judicial review should not be exceeded beyond the recognized parameters. Their Lordships have held as under: “99. In majority of judgments relied upon by learned Attorney General and learned counsel for the respondents, it has been held that the power of judicial review should be exercised with great care and circumspection and the Court should not ordinarily interfere with the policy decisions of the Government in financial matters. There cannot be any quarrel with the proposition that the Court cannot substitute its opinion for the one formed by the experts in the particular field and due respect should be given to the wisdom of those who are entrusted with the task of framing the policies. We are also conscious of the fact that the Court should not interfere with the fiscal policies of the State. However, when it is clearly demonstrated that the policy framed by the State or its agency/instrumentality and/or its implementation is contrary to public interest or is violative of the constitutional principles, it is the duty of the Court to exercise its jurisdiction in larger public interest and reject the stock plea of the State that the scope of judicial review should not be exceeded beyond the recognised parameters.

100. When matters like these are brought before the judicial constituent of the State by public spirited citizens, it becomes the duty of the Court to exercise its power 49 in larger public interest and ensure that the institutional integrity is not compromised by those in whom the people have reposed trust and who have taken an oath to discharge duties in accordance with the Constitution and the law without fear or favour, affection or ill will and who, as any other citizen, enjoy fundamental rights and, at the same time, are bound to perform the duties enumerated in Article 51A. Reference in this connection can usefully be made to the judgment of the three Judge Bench headed by Chief Justice Kapadia in Centre for P.I.L. v. Union of India (2011) 4 SCC 1.”

41. As far as the question of locus standi of the petitioner association is concerned, their Lordships of the Hon’ble Supreme Court in Sai Chalchitra versus Commissioner, Meerut Mandal and others, (2005) 3 SCC 683 have held that the appellant being in the same trade as respondent No.3 had a right to seek the cancellation of the licence granted to respondent No.3 being in violation of the Act and the Rules. Their Lordships have held as under: “4. Learned Single Judge, before whom the writ petition came up for hearing, dismissed the writ petition on the locus standi of the appellant to file the writ petition without going into the other questions of law. It was observed that the appellant could not raise a grievance against his rival in the trade particularly when the rival in trade, as in the instant case, was exhibiting cinematograph films much before the appellant was granted the licence. It was held that the appellant had not been denied or deprived of its legal right to exhibit the films and, therefore, he had not sustained any legally protected interest. It was also observed that the order of the Commissioner did not operate as a decision against the appellant as the appellant 50 had not suffered any legal wrong. The writ petition filed by the appellant was held not to be maintainable.

5. After hearing the counsel for the parties, we are of the opinion that the High Court clearly erred in dismissing the writ petition filed by the appellant on the ground of locus standi. The appellant being in the same trade as Respondent 3 has a right to seek the cancellation of the licence granted to Respondent 3 being in violation of the Act and the Rules.”

42. Consequently, in view of the observations and analysis made hereinabove, the writ petition is allowed. Respondent No.1 is directed to take a decision to notify petroleum, petroleum products and natural gas within a period of twelve weeks from today. Respondents No.2 to 4 are directed to comply with the action approved in the meeting held on 9.6.2011, as per para 7, within a period of six weeks from today. Thereafter, respondent No.1 shall take final decision appropriate directions/guidelines/ instructions on the opening of new retail outlets. Till then, the parties are directed to maintain status quo as of today. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.

17.5. 2012 *awasthi* (Justice Rajiv Sharma), Judge.