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Judgment
The Honourable Mr. Justice Vinod K. Sharma
The Petitioners, in all these writ petitions, are colleges, who have approached this Court with a prayer, for issuance of a writ, in nature of Mandamus, directing the Respondents to supply LPG cylinder for cooking purpose, weighing 14.2 Kgs, under domestic category.
The Respondents are the State within the meaning of Article 12 of the Constitution of India, being Government undertaking. The Respondents issued guideline, vide, circular No. 20/2003, dated 30th October 2003, for supply of subsidized LPG for Non-Domestic Exempted Category of Customers.
The Circular, reads as under:
All Indane Distributors, Chennai Area.
Dear Sirs/Madam,
Sub: Supply of subsidi Sed LPG for Non-domestic Exempted Category of Customers.
Consequent on receipt of revised guidelines on exempted supplies, instructions were earlier issued, vide our circular No. 02/2003, dated 06.01.2003, followed by subsequent circular in the matter.
We have now been informed that, based on various representations received from State/Central departments and other in stitutions, Ministry of Petroleum & National Gas, Government of India, New Delhi conveyed their approval through our Head Office to continue supply of subsidised packed LPG (14.2 Kg. cylinders) to all the non-domestic exempted category of customers, as listed below:
a. Government/ Municipal Hospitals for what ever purpose that take.
b. Supplies to all schools and colleges whether for hostels or for mid-day meal schemes.
c. Canteens attached to Govt. offices (Govt. includes State Govt. and Local bodies and their installations & Guest Houses etc.,)
d. Messes of Police, BSF, CISF in addition to kitchens & messes of the Defence establishments.
e. Canteens run of Cooperative basis under Cooperative Societies Act.
f. Laboratories attached to schools, colleges & research in stitutions.
g. Charitable institutions registered under the societies act.
With the above clearance, all our circulars/ instructions issued from 06.01.2003 till date on withdrawal of exempted category supplies stands cancelled. Therefore, as per the clearance now given by MOP & NG, category of customers covered under (a) to (g) above can now be supplied subsidised packed LPG (14.2Kg cylinders)with immediate effect.
Based on the earlier instructions, there may cases where the customers were converted from 14.2 Kg to 19 Kg supplies. In view of the present clearance by the Ministry, you may approach all eligible customers and re-convert to supply of 14.2 Kg cylinders, under due documentation.
This process should be completed on priority and immediate steps should be taken by the distributors to contact our valued customers personally/telephonically and also send suitable communication in this regard. This exercise should be completed latest by 15.05.2003. Subsequently, list of exempted category customers should be submitted to Area Office by 25.05.2003 through Field Officer, as per the format enclosed. This list should be updated on monthly basis and submitted to Area Office through Field Officer and one copy of latest list should always be available in the distributorship, for verification by the visiting officials.
Thanking you,
Yours Sincerely, For Indian Oil Corporation Ltd., sd/ xxxx (R. Gopalakrishnan) Chief Area Manager.
In pursuance to the circular, all the Petitioners are being supplied LPG cylinder for the hostels under ''Non-Domestic Exempted Category of Customers''.
All of a sudden, the Respondent No. 2 addressed the letter to the Petitioners, calling on them to surrender the equipment, and take refund of deposit amount, for the reason that the Petitioner colleges, were private un-aided colleges and therefore, not entitled for domestic refills, under the policy.
The impugned letter, in one of the cases, reads as under:
To, Adaikala Matha College, Vallam, Thanjavur-613 403.
Dear Sir,
Sub: Release of Non-Domestic Commercial Exempted Category (NDCE) Gas connection for your
PG Hostel.
***
This has reference to your letter on the above subject. In this connection, we are pleased to inform you that we are advising our Distributors to release the following No. of Cylinders and Pressure Regulators (PRs) after collection the security deposit currently prevailing.
Installed Capacity Monthly Refills Limit (Cyls)/ Month
Cylinders PRs 50
10+10 -
Capacity of Cylinders: 14.4 Kgs.
Present Deposit: Rs. 900/- per 14.2 Kg. Cylinder & Rs. 100/- per Pressure Regulators.
You may also handover this letter to our distributors mentioned hereunder.
You may kindly contact our distributors and avail of the LPG connection after observing the formalities as required by them.
Please execute an undertaking to our distributors if not already done. Your copy of approved lay-out plan is sent herein.
Thanking You and assuring you of our best services always.
Yours faithfully,
For Indian Oil Corporation Limited
sd/- xxxx
For Sr. Area Manager
CC:M/S. Sundar Vinayagar Agencies, Thanjavur
Your are advised to release a gas connection to the above party after observing the usual formalities and advise us the SV No. & Date.
Your copy of the lay-out plan is sent herewith.
Please obtain an undertaking from the customer before releasing the connection.
For information please.
CC:Dy. Manager (LPG), Trichy.
All other Petitioners have also been issued similar letters.
The Petitioners challenged the impugned letters on the ground, that the orders are contrary to the circular, issued by the Indian Oil Corporation, exempting all the schools and colleges/hostels, without any distinction as to whether they are Government aided or unaided colleges. Therefore, it is not open to the Respondent No. 2, to issue the impugned orders to stop the supply to the Petitioners.
It is also the contention of the Learned Counsel for the Petitioners that the impugned orders on the face of it, are arbitrary and against the policy of the Indian Oil Corporation. The order further violates the provision of Article 14 of the Constitution of India, as it discriminate between the hostels having education in the Government aided institutions and unaided institutions.
The writ petitions are opposed by the Learned Counsel appearing on behalf of the Respondents, on the ground that the Respondents have not stopped the supply of cylinders, but only asked the Petitioners to pay commercial rate, as they do not come under the charitable institutions, as the hostels are not being run free.
The Learned Counsel for the Respondents also contend that the writ petitions are not maintainable as this Court has no jurisdiction to issue a writ in the nature of mandamus, in absence of legal right being infringed and there being legal obligation on the Respondents, to redress the legal wrong.
On consideration, I find force in the contention raised by the Learned Counsel for the Petitioners.
The Respondents, being the State, within the meaning of Article 12, cannot be allowed to act arbitrarily while dealing with citizens.
Once, in the circular there is no classification between the Government aided and unaided colleges, the Respondent No. 2 has no jurisdiction to issue instructions, contrary to the circular issued by the Indian Oil Corporation.
Though, the circular may not give enforceable legal right, but the discrimination in implementing the circular gives a right to a party to come to this Court to challenge an order, which on the face of it is, arbitrary and violative of Article 14 of the Constitution of India.
It cannot be said that this Court does not have jurisdiction to entertain and try the present writ petitions, as contended by the Learned Counsel for the Respondents.
In absence of change of circular or the decision by the Respondent No. 1, it is not open to the Respondent No. 2 to take a different view and discrimination between similarly situated person, i.e., between the schools and colleges running the hostels, on ground of being aided or unaided.
The impugned orders cannot be sustained, merely because Respondents have offered to supply gas at commercial rate, as this offer amounts to discrimination between same class, as per the classification given in the circular, which is binding on Respondent No. 2 being employee of the corporation.
Consequently, these writ petitions are allowed, the impugned orders are set aside, and a writ in the nature of mandamus, is issued, directing the Respondents to treat the Petitioners under Exempted Category, as per circular of the Indian Oil Corporation, No. 20/2003, dated 30.04.2003.
It is made clear that it shall be open to Respondent No. 1 to take a policy decision in accordance with law.
Consequently, connected Miscellaneous Petition is closed. No costs.