Karam Chand Saraf and Sons and Ors vs State and Ors

Petitioners, ten in number, are the agents of various Oil Companies and carrying on the business of purchase and sale of kerosene oil prior to the

year 1972. All the petitioners have entered into a formal agreement with their respective oil companies in this regard. With a view of effective

regulation of the kerosene oil and uniformity in price, the Government of India has issued Kerosene (Fixation of Selling Prices) Order 1970 (herein

after referred to as Order). Clause 3 of the aforesaid order deals with the fixation of maximum selling price of kerosene.

The grievance of the petitioners is that in terms of clause 3 of the Order, the respondents have not fixed the maximum selling price of kerosene

including the extraordinary expenditure which the dealers may have to incur under conditions and also the road transport charges taking into

consideration any increase or decrease in transportation charges payable for the transportation of goods by the shortest routes.

Petitioners in the present writ petition have made the following substantive prayer:

It is respectfully prayed that by an appropriate writ direction or order in the nature of mandamus commanding respondents No. 1 to 3 to fix the

selling price of kerosene oil in terms of clause 3 of the kerosene (Fixation of Ceiling Prices) Order 1970 and allow the petitioners the extraordinary

expenditure incurred by the petitioners in terms of sub clause (c) (ii) of clause 3 of the said order;

with a further writ direction or order in the nature of mandamus directing respondents No.1 to 3 to fix the transportation charges in terms of sub

clause (d)(ii) of clause 3 of the said order and to include the charges so fixed while fixing the selling price under the order mentioned above;

with a further writ, direction or order in the nature of mandamus directing the respondents to fix the selling price with effect from 1972 and give to

the petitioners the benefit of the hike in transportation charges and the extraordinary expenditure from time to time for the payment whereof proper

claims have already been made by the petitioners...

Respondents in their counter have pleaded that respondents imposed a departmental premium @Rs.40/ per kilolitre, which was ultimately

charged from the consumers by including the same in the sale price. It is stated that the amount charged from the consumers has been withheld by

the petitioners even before filing of the writ petition and this amount is more than Rs.90 lacs.

The farther case of respondents is that during the pendency of the writ petition, various orders have been passed by respondents fixing the sale

price of kerosene and transportation charges including commission etc.

I have heard the learned counsel for the parties and perused the record. Under the Order, there is a statutory duty imposed upon respondents to

fix the price of kerosene including the transportation charges. Respondents have taken a specific plea that during the pendency of this writ petition,

various orders have been issued fixing the price of kerosene and transportation charges including the commission. However, no such order has

been placed on record to enable this court to appreciate the contention raised by the learned counsel for respondents in this regard. When the

respondents have not placed any such order on record, then it will be presumed that no such order has been passed by respondents.

Mr Salathia, learned AAG, appearing for respondents made a statement that petitioners firstly should deposit the premium which has been

collected from the consumers amounting to Rs. 90 lacs before filing of the present writ petition and thereafter, respondents will fix the price.

I do not agree with the above contention raised by the learned AAG, appearing for respondents. Clause 3(ii)(d) of the Order imposes a

statutory duty upon the respondents to fix the price of sale of kerosene and its transportation. Respondents, therefore, cannot put any such

condition for fixing the price and commission etc. Similar proposition came up before Punjab and Haryana High Court in a Civil Writ Petition

No.1401 of 1971, Mis Hazura Singh Gujjar Mai and others v. The State of Punjab and others, decided on 19th October'71. In the above case,

the respondents were directed to fix the prices and transportation charges in accordance with Clause 3 of the Order. The said directions were not

complied with. Petitioners in the above case again approached the court through Civil Writ petition No.980/1972, M/s Hazura Singh Gujjar Mal

and Ors. v. State of Punjab and Ors, decided on 23rd May' 72. The Punjab and Haryana High Court accepted the writ petition and fixed the

prices itself.

The proposition as has been raised in the present petition was also considered by this court in OWP No.833/2000. Mis Behari Lal Som Nath

andorsv. State of J&K and others, decided on 30th Sept'04. In the said case, following directions were issued:

This petition is accordingly allowed. Respondents are directed to fix transportation charges/freight for transportation of kerosene oil in accordance

with GSR 864 dated 1.6.1970. Let transportation charges/freight be determined keeping in view the escalation with effect from 1991 till date for

all the components noticed herein above with a period of four months from today. Respondents shall also consider and fix transportation charges

with effect from 1992 on the basis of national price index and appropriate order be passed within aforesaid period.

In view of the above discussion, this petition is allowed. Respondents are directed to fix the sale price of kerosene alongwith the transportation

charges, commission etc. w.e.f the date of filing of the writ petition in accordance with GSR 864 dt. 1st June'70, within a period of four months

from the date a copy of this order is made available to respondents by the petitioners. However, it is made clear that after fixing of the price of

kerosene, transportation charges, Commission etc, the respondents would be at liberty to claim the premium, if any, from the petitioners.

Writ petition disposed of accordingly.