Sanjeev N. and others v. Taluk Supply Officers and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **FRIDAY, THE 19TH DAY OF JANUARY 2018 / 29TH POUSHA, 1939** **WP(C).No. 19111 of 2017** ## **PETITIONER(S):** - **1 SANJEEV.N, MANAGING PARTNER, NATIONAL OIL AGENCY, IOC KEROSENE WHOLESALE DEALER, KWD-VIII, AMBALAPUZHA TALUK, ALAPPUZHA.** - **2 K.SHIV KUMAR, PARTNER, ALAPPUZHA PETROLEUM AGENCY, BPC KEROSENE WHOLESALE DEALER, KWD-X, AMBALAPUZHA TALUK, ALAPPUZHA.** - **3 V.P.LEGI, PARTNER, SAINIK OIL AGENCY, IOC KEROSENE WHOLESALE DEALER, KWD-11, (PURAKAD), KWD-7, KALARCODE AMBALAPUZHA TALUK, ALAPPUZHA.** - **4 HISHAM SHERIFF, PARTNER, SYED MOHAMED HAMEED SONS, HPC KEROSENE WHOLESALE DEALER, KWD-2, VACHICHERRY WARD, AMBALAPUZHA TALUK, ALAPPUZHA.** - **5 MANOJ KUMAR.M, MANAGING PARTNER, MRV PRABHU & SONS, IOC KEROSENE WHOLESALE DEALER, KWD-2, CHERTHALA TALUK, ALAPPUZHA.** - **6 K.J.ALEXANDER, MANAGING PARTNER, KODUMALAYIL AGENCIES, IOC KEROSENE WHOLESALE DEALER, KWD-5&7, KARTHIKAPALLY TALUK, ALAPPUZHA DISTRICT, KWD 2 & 10, CHENGANNOOR TALUK, ALAPPUZHA DISTRICT, KWD 7 KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT.** - **7 SUMAYYA RAFEEQ, PARTNER, MEERAVU HAJI SONS, IOC KEROSENE WHOLESALE DEALER, KWD-3, AMBALAPUZHA TALUK, ALAPPUZHA.** - **8 NOUSHAD HUSSAIN, MANAGING PARTNER, K.K.MOHAMMED & CO., HPC KEROSENE WHOLESALE DEALER, KWD-4,KARTHIKAPAPPILLY TALUK, KAYAMKULAM, ALAPPUZHA DISTRICT.** **..2/-** **..2..** ## **WP(C).No. 19111 of 2017** |**9**|<br>**DR.M.S.ABRAHAM,**| |---|---| ||**PROPRIETOR, HPC KEROSENE WHOLESALE DEALER,**| ||**KWD-8, (MAVELIKKARA), MAVELIKKARA TALUK,**| ||**ALAPPUZHA, KWD-9 (KAYAMKULAM), KARTHIKAPPILLY TALUK,**| ||**KWD 11 (CHERIYANAD), CHENGANNOOR TALUK, ALAPPUZHA.**| |**10**|<br>**A.V.JOHN ZACHARIAH**| ||**PARTNER, M/S. THOMJAS ZACHARIAH, IOC KEROSENE WHOLESALE**| ||**DEALER, KWD-1, (KAYAMKULAM), KARTHIKAPPALLY TALUK,**| ||**ALAPPUZHA KWD-2 (KAYAMKULAM, KARTHIKAPPALLY TALUK,**| ||**ALAPPUZHA KWD-2 (BHARANIKAVU) SASTHAMKOTTA TALUK,**| ||**KOLLAM KWD-1 (SASTHAMKOTTA), SASTHAMKOTTA TALUK,**| ||**KOLLAM KWD-3 (KADAMBANAD), SASTHAMKOTTA TALUK,**| ||**KOLLAM.**| |**11**|<br>**C.S.MURALEEDHARA PRABHU,**| ||**M/S. N.NARAYANA PRABHU & SONS, HPC KEROSENE WHOLESALE**| ||**DEALER, KWD-6, CHERTHALA, ALAPPUZHA DISTRICT.**| **BY SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE ADV. SRI.S.SUJIN** ## **RESPONDENT(S):** |**1.**|<br>**TALUK SUPPLY OFFICER,**| |---|---| ||**AMBALAPUZHA TALUK-688 561.**| |**2.**|<br>**TALUK SUPPLY OFFICER,**| ||**CHERTHALA TALUK-688 524.**| |**3.**|<br>**TALUK SUPPLY OFFICER,**| ||**KARTHIKAPALLY TALUK-690 516.**| |**4.**|<br>**TALUK SUPPLY OFFICER,**| ||**CHENGANNOOR TALUK-689 594.**| |**5.**|<br>**TALUK SUPPLY OFFICER,**| ||**KOZHENCHERRY TALUK-689 554.**| |**6.**|<br>**TALUK SUPPLY OFFICER,**| ||**MAVELIKKARA TALUK-690 101.**| |**7.**|<br>**TALUK SUPPLY OFFICER,**| ||**SASTHAMKOTTA TALUK-690 521.**| |**8.**|<br>**DISTRICT SUPPLY OFFICER,**| ||**ALAPPUZHA-688 001.**| |**9.**|<br>**DISTRICT SUPPLY OFFICER,**| ||**KOLLAM-691 001.**| **..3/-** **..3..** ## **WP(C).No. 19111 of 2017** **10. DISTRICT SUPPLY OFFICER, PATHANAMTHITTA-689 645.** **11. COMMISSIONER OF CIVIL SUPPLIES DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695 001.** **12. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695 001.** **BY SR.GOVERNMENT PLEADER SRI.Y.JAFAR KHAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-01-2018, ALONG WITH W.P.(C)NO. 23216 OF 2017, THE COURT ON 19-01-2018 DELIVERED THE FOLLOWING:** **Msd.** **WP(C).No. 19111 of 2017** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** |**EXHIBIT P1:**|**TRUE COPY OF THE ORDER OF THE CENTRAL**| |---|---| ||**GOVERNMENT DATED 04.06.2002.**| |**EXHIBIT P2:**|**TRUE COPY OF THE ORDER DATED 28.02.2007 ISSUED BY**| ||**MINISTRY OF PETROLEUM AND NATURAL GAS,**| ||**GOVERNMENT OF INDIA.**| |**EXHIBIT P3:**|**TRUE COPY OF ORDER DATED 23.05.2008 ISSUED BY**| ||**MINISTRY OF PETROLEUM AND NATURAL GAS,**| ||**GOVERNMENT OF INDIA.**| |**EXHIBIT P4:**|**A TRUE COPY OF ORDER DATED 06.07.2009 ISSUED BY**| ||**MINISTRY OF PETROLEUM AND NATURAL GAS,**| ||**GOVERNMENT OF INDIA.**| |**EXHIBIT P5:**|**A TRUE COPY OF ORDER DATED 07.09.2010 ISSUED BY**| ||**MINISTRY OF PETROLEUM AND NATURAL GAS,**| ||**GOVERNMENT OF INDIA.**| |**EXHIBIT P6:**|**A TRUE COPY OF ORDER DATED 28.12.2012 ISSUED BY**| ||**MINISTRY OF PETROLEUM AND NATURAL GAS,**| ||**GOVERNMENT OF INDIA.**| |**EXHIBIT P7:**|**A TRUE COPY OF ORDER DATED 21.10.2014 ISSUED BY**| ||**MINISTRY OF PETROLEUM AND NATURAL GAS,**| ||**GOVERNMENT OF INDIA.**| |**EXHIBIT P8:**|**TRUE COPY OF THE ORDER IN WRIT PETITION NO.14775/2014.**| |**EXHIBIT P9:**|**TRUE COPY OF THE JUDGMENT IN WRIT PETITION NO.22043/2008.**| |**EXHIBIT P10:**|**TRUE COPY OF JUDGMENT IN WRIT PETITION NO.7798/2008.**| |**EXHIBIT P11:**|**TRUE COPY OF THE JUDGMENT DATED 31.10.2016 IN**| ||**WRIT PETITION NO.33229/2016.**| |**EXHIBIT P12:**|**TRUE COPY OF JUDGMENT IN WRIT PETITION NO.33381/2016.**| |**EXHIBIT P13:**|**TRUE COPY OF NOTICE DATED 20.05.2017 ISSUED TO**| ||**1ST PETITIONER.**| |**EXHIBIT P14:**|**TRUE COPY OF NOTICE DATED 20.05.2017 ISSUED TO**| ||**2ND PETITIONER.**| |**EXHIBIT P15:**|**TRUE COPY OF NOTICE DATED 20.05.2017 ISSUED TO**| ||**3RD PETITIONER.**| ## **WP(C).No. 19111 of 2017** **EXHIBIT P16: TRUE COPY OF NOTICE DATED 20.05.2017 ISSUED TO 3RD PETITIONER. EXHIBIT P17: TRUE COPY OF NOTICE DATED 20.05.2017 ISSUED TO 7TH PETITIONER. EXHIBIT P18: TRUE COPY OF LETTER DATED 30.08.2010 ISSUED BY THE MINISTRY OF PETROLEUM AND NATURAL GAS, GOVERNMENT OF INDIA.** ## **RESPONDENT(S)' EXHIBITS :** **EXHIBIT R11(A): TRUE COPY OF THE GOVERNMENT ORDER NO.G.O(MS)NO.17/2005/FCS & CAD DATED 02.04.2005.** **EXHIBIT R11(B): TRUE COPY OF THE GOVERNMENT ORDER NO.G.O.(MS)NO.55/2013/F&CSD DATED 09.12.2013.** **EXHIBIT R11(C): TRUE COPY OF THE GOVERNMENT ORDER NO.G.O.(MS)NO.41/2015/F&CSD DATED 09.12.2015. EXHIBIT R11(D): TRUE COPY OF THE G.O.(MS)NO.26/2016/F&CSD DATED 20.12.2016. EXHIBIT R11(E): TRUE COPY OF THE G.O.(MS)NO.11/2017/F&CSD DATED 26.05.2017.** ## **//TRUE COPY//** **P.S.TO JUDGE** ## **Msd.** ## **ANU SIVARAMAN, J. ----------------------------------------------W.P(C).Nos. 19111 and 23216 of 2017 ----------------------------------------------Dated this the 19[th] day of January, 2018** ## **JUDGMENT** These writ petitions have been filed seeking directions to disburse dealers' commission as also to revise transportation costs in accordance with the instructions given by the Central Government. There were further prayers not to collect any amount by way of differential price of kerosene from the petitioners. 2. Heard the learned Senior Counsel appearing for the petitioners and the learned Senior Government Pleader Sri.Jafar Khan. 3. The petitioners are wholesale distributors appointed under the provisions of the Kerosene Control Order. The petitioners contend that orders issued by the Central Government instructing the State Government to revise the dealers' commission are implemented only after long delays and this results in denial of amounts legally due to the petitioners. It is further contended that when there is an upward revision of wholesale price, the differential price of kerosene is to be retained by the wholesale dealers and the steps taken by _**WP(C).19111 & 23216/17**_ 2 the Government to recover this differential price from the distributor is illegal and unsustainable. 4. It is further stated that the revision of commission fixed by the Central Government and the difference in transportation charges are not disbursed to the petitioners by the State Government. It is stated that the issue of entitlement of differential price of kerosene in the event of upward revision of price of kerosene is covered by the decision of a Division Bench of this Court reported in _**Taluk Supply Officer v. Parakkottil Brothers**_ [1991(2) KLT 901]. 5. A counter affidavit has been filed on behalf of the 11[th] respondent, wherein it is stated that the State Government has been periodically revising dealers' commission and transportation charges due to the wholesale dealers of kerosene based on the Central Government orders. It is stated that the Central Government issues only guidelines and there is no direction to implement the same immediately. It is stated that the State Government is at liberty to consider the date from which the revision of charges are to be made applicable. It is stated that meetings of all stake holders are held by the State Government and revisions are ordered accordingly. It is further stated that the petitioners are not entitled to revise _**WP(C).19111 & 23216/17**_ 3 dealers' commission from the date of the revision effected by the Central Government. They would be entitled for revision only from the date when the revision is implemented by the State Government and they are being given the benefits of such revision. It is stated that Clause 8A of the Kerala Kerosene Control Order provides that whenever the issue price of Kerosene is revised upward, differential cost worked out at the difference between the revised wholesale selling price and the pre-revision selling price on the closing stock available with the dealer on the close of business on the day previous to the day on which the revised rate comes into force shall be payable to the Government by the wholesale dealer. It is stated that the validity of the said provision had been considered by a Division Bench of this Court in the decision reported in _**State of Kerala v. Mathunni Mathew and Sons**_ [2007(1) KHC 678] wherein, after referring to the decision of an earlier Division Bench in _**Parakkottil Brothers's case (supra)**_ , which is relied on by the learned Senior Counsel appearing for the petitioners, it has been held that Clause 8A of the Kerala Kerosene Control Order provides for the recovery of differential cost and that the recovery is therefore supported by statutory revisions. It is further submitted that the issue of differential cost has been _**WP(C).19111 & 23216/17**_ 4 considered by another single Judge of this Court in the judgment dated 21.12.2016 in W.P(C).No.37937 of 2010 and the demand for differential price has been upheld. The learned Senior Counsel appearing for the petitioners contended that the request for timely upward revisions in adjustment price and transportation charges as well as the dealers' commission has been taken up by the petitioners before the Government. 6. I have considered the contentions advanced. It is clear that the petitioners who are whole dealers in kerosene are liable to abide by the provisions contained in the Kerala Kerosene Control Order in respect of the fixation of price of kerosene as far as several components thereof are concerned. It is for the State Government to revise the elements of the amounts due to the petitioners including the dealers' commission and transportation charges. The adjustment price is collected by the dealers from the consumer and is remitted to the Government. Similarly, Clause 8A of the Kerosene Control Order specifically provides that where there is upward revision of kerosene, the differential price shall be remitted by the wholesale dealers to the Government. This aspect of the matter has been considered by a Division Bench of this Court in _**Mathunni Mathew and Sons' case (supra)**_ and it has been _**WP(C).19111 & 23216/17**_ 5 held that the realisation of the differential price of kerosene is justified in view of Clause 8A of the Kerala Kerosene Control Order. In the above view of the matter, the notices impugned in the writ petitions are legal and valid and are supported by Clause 8A of the Kerala Kerosene Control Order. 7. In respect of the other prayers raised by the petitioners also, I am of the opinion that the prayer to disburse dealers' commission from the date of issuance of guidelines by the Central Government and to disburse the same with arrears cannot be granted in view of the fact that it is for the State Government to revise the dealers' commission and transportation charges. Corresponding revisions have been made by the Government in tune with the guidelines issued by the Central Government and the amounts due have been released to the petitioners from the date of revisions effected by the State Government. However, the petitioners contend that requests have been made by them before the respondents seeking speedy implementation of the revision of dealers' commission and transportation charges, once such revised rates have been notified by the Central Government. It is further contended that request for further revisions are also pending before the State Government. 6 _**WP(C).19111 & 23216/17**_ In the result, these writ petitions are disposed of with a direction to the State Government to consider any representations preferred by the petitioners for upward revision of dealers' commission, transportation charges or on any other account in accordance with law. The State Government shall also implement any revisions made in dealers' commission or transportation charges by the Central Government without undue delay. It is made clear that the further prayers made in the writ petitions are declined and the interim orders stand vacated. **ANU SIVARAMAN JUDGE** _vgs_