HINDUSTAN PETROLEUM GAS AGENCY-/O.P. vs PARSHOTAM SHARMA

WHETHER the Deputy Commissioner/Sub Divisional Magistrates are empowered to issue permits for the refil of a gas cylinder, even to persons other than the registered consumers of a gas agency, is the solitary question in this appeal.

THE facts are not in serious dispute. On the respondent-complainant''s own showing the marriage of his nephew was scheduled for the 11th of April, 1992 and, therefore, he applied to the Sub Divisional Magistrate, Bhiwani for getting two gas cylinders. Though admittedly he was not a registered consumer with any gas agency, the Sub Divisional Magistrate issued a permit of two refills in the name of the appellant Hindustan Petroleum Gas Agency at Bhiwani directing the supply of two cylinders. When the complainant-respondent approached the appellant agency, they refused to give the cylinder and consequently the complainant was compelled to arrange for these cylinders elsewhere at considerable extra cost and harassment which led to delay in boiling his milk collected for the marriage which got split resulting in the loss of Rs. 3000/- only. Aggrieved thereby the respondent preferred the complaint. In resolutely defending the complaint, basic preliminary objections were first taken. It was the firm stand that the complainant did not remotely come within the ambit of the definition of a ''consumer''. The further plea was that a refill can be given only to the registered consumers of the agency and the complainant admittedly not being such a registered consumer, he was in no way entitled to a refil. It was the firm case that the issuing of such a permit or slip by the Sub Divisional Magistrate was contrary to law as there was no such provision for directing supply of refills to each and every person who was not even a registered consumer with any gas agency. It was pointed out that the head-office of the Hindustan Petroleum Company had even written to the Deputy Commissioner that the issuance of any such permits or slips was wholly unauthorised and in any case the appellants were governed by the instructions of their principals. It was even pointed out that the complainant was doing an illegal act by keeping a gas cylinder which is contrary to the gas control order unless he is a registered consumer for a gas agency.

On merits it was admitted that the complainant-respondent had procured a permit from the Sub Divisional Magistrate, but this was without any authorisatiaon or jurisdiction. The fact of the wastage of milk etc. was denied for want of knowledge and any liability, therefore was disclaimed.

THE parties placed their respective evidence on record and upon a direction being issued, the office of the Sub Divisional Magistrate, Bhiwani produced a photostat copy of a brief order issued by the Deputy Commissioner, Bhiwani on the 4th of January, 1991 reserving 10% of the supply of gas refils for issuing permits by the Sub Divisional Magistrate. THE District Forum did not at all advert to the preliminary jurisdictional objections about the very maintainability of the complaint on the ground of the complainant not being a consumer and somewhat briefly concluded that the appellant had failed to supply gas to the respondent and had, therefore, caused mental agony and pain to him. Whilst rejecting the complainant''s tall claim of loss of milk etc. to the tune of Rs. 3000/- a somewhat modest compensation of Rs. 150/- was granted. Aggrieved thereby the present appeal has been preferred. Mr. R.S. Chahar, the learned Counsel for the appellant has very ably and forcibly projected his stand. He had frontally assailed the very power of the Deputy Commissioner or their delegates the Sub Divisional Magistrates to issue permits for the refil of the gas cylinder to any and every person irrespective of the fact that he was a registered consumer of the gas Agency or not. It was submitted that no such arbitrary or unguided powers vested in the authorities. It was pointed out that herein the matter is governed by statutory rules and instructions and thereunder no unauthorised person was even entitled to keep in possession the L.P.G. cylinder. Reliance was placed on the communication addressed by the Hindustan Petroleum Corporation Limited to the Deputy Commissioner, Bhiwani pointedly bringing to his notice that they could not issue permits to persons who were not registered consumers with the distributors. On these premises, it was contended that the appellant was not only entitled but duty bound to refuse delivery to the complainant-respondent and consequently no relief could be granted against them.

ON the other hand, the respondent Shri Parshotam Sharma who made his submissions in person, took up the simplistic stand that the Sub Divisional Magistrate could issue the permits to any and every one. It was fairly conceded that the respondent was neither a registered consumer of the appellant Gas Agency and was not even a person who had applied for the release of a gas connection to him. Nevertheless without citing chapter or verse, it was the respondent''s refrain that the Sub Divisional Magistrate was empowered to issue the permit and he was entitled to its execution. To appraise the rival stand it is first necessary to notice the statutory back-drop against which the matter has to be considered. It would appear that this field for a considerable time has been governed by statutory orders issued under the Essential Commodities Act, 1955. However, for our purposes, it is unnecessary to travel beyond the Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order, 1988 which was promulgated and published in the Gazette Extra-ordinary, dated the 21st of April, 1988. The said order has been issued by the Central Government in exercise of the powers conferred by Section 3 of the Essential Commodities Act and it extends to the whole of India. Significantly therein the "Consumer" and "distributor" are precisely defined in Clauses (a) and (d) in para 2 which merit notice in extenso :- (a) "consumer" means a person, firm, company, institution, association of persons, cooperative society or organisation, whose name is registered with a distributor or an Oil Company, ? or supply of Liquefied Petroleum gas in cylinders;

(d) "distributor" means a person, a firm, an association of persons, a company, a corporation, institution organisation or a co-operative society engaged in the business of purchase, sale or storage for sale of Liquefied Petroleum Gas in cylinders on the basis of an agreement with an Oil Company, whether or not in conjunction with any other business, his representatives, employee, agent or commission agent, but does not include an Oil Company."

Apart from the above para 3 of the aforesaid order places restrictions on the possession and consumption of Liquefied Petroleum Gas by laying down that no person shall be granted more than one connection, therefor and no person shall possess or use such gas in a cylinder or in bulk unless he has received the supply thereof from a distributor or from an Oil Company. Yet again para 6 (ii & iv) mandates that no person shall possess a gas cylinder and its accessory unless he is a consumer and the same has been supplied to him by an Oil Company or its distributors.

NOW a plain and broad reading of the Liquefied Petroleum Gas Order (Supra) would make it manifest that it expressly creates a class of registered consumers with a distributor of an Oil company for the supply of L.P.G. cylinder. Primarily it is this class which are entitled to get the gas cylinder or their refills in accordance with the relevant provisions and instructions and guidelines in this regard. It would seem that under the law and the very possession of a L.P.G. cylinder is governed by the rules and regulations abovesaid and no person is authorised or entitled to do so contrary to the same.

IN the light of the above there is thus patent merit in the stand firmly taken by Mr. R.S. Chahar on behalf of the appellant. As noticed already the respondent could point out nothing for his somewhat doctrinaire submission that the Deputy Commissioner had a carte-blanche to issue a permit for refills to any or every one irrespective of such persons being a registered consumer. The reliance on the cryptic order produced by the office of the Sub Divisional Magistrate, Bhiwani on the record does not in any way advance the respondent''s case. It is merely a delegation by the Deputy Commissioner of his powers of 10% quota of preferential permits. It does not in the least indicate that this 10% quota is a totally unrestricted and unguided one. INdeed it is somewhat patent that this discretion is only to regulate consumption inter-se between registered consumers only and in a particular case to give preference to one registered consumer over another. It certainly is not a power to pass on the supply of gas cylinders to persons who are not even registered as consumers with the gas agencies whilst the latter category admittedly is starved of the supplies of the gas facility. Reference in this connection is also necessary to the firm stand of the Hindustan Petroleum Corporation Limited in their various communications to the authorities. Admittedly the appellants are the distributions of the said Corporation and it has repeatedly taken the stand that under the statutory provisions no permits or slips for out of turn release of refills can be made to persons who are not the registered consumers with their distributors. It has been pointed out that due to the heavy back-log which has built up even the genuine consumers were not getting their refills and in this context to divert supply to unauthorised persons was patently contrary to the relevant provisions governing the matter and otherwise contrary to sound public policy also.

In the light of the fore-going discussion, the answer to the question formulated at the outset has to be rendered in the negative. It is held that the Deputy Commissioner or their delegates Sub Divisional Magistrates are not empowered to issue permits for the refill of a gas cylinder to persons other than the registered consumer of a Gas Agency. Once it is held as above, it is somewhat elementary that the very bottom is knocked out of the respondent''s case. It was solely rested on the tenuous ground of the permit so issued. Once the same is held to be beyond jurisdiction, necessarily no right therefrom can flow in favour of the respondent which could merit relief within the consumer jurisdiction.

FOR the fore-going reasons this appeal must succeed and we are constrained to set aside the order of the District FORum. We would however, not wish to burden the respondent-consumer with costs. In the end we must record our appreciation for the learned counsel for the appellant who had pains takingly brought the somewhat obscure relevant provisions and instructions to our notice and projected a matter of wide ranging consumer interest with considerable ability. Appeal allowed.