JUDGMENT B.K. Sharma and V.M. Sahai, JJ.
1. Heard Sri Ramesh Singh, learned counsel for the petitioners and Sri R. K. Awasthi, learned standing counsel for respondent Nos. 1 to 3.
2. The only short dispute is whether the order dated 25.10.1997 of District Magistrate, Gorakhpur (Annexure-7 to the writ petition) cancelling the earlier order of his predecessor dated 19.9.1997 (Annexure-6 to the writ petition) enhancing transportation charges from Rs. 100 to Rs. 145 per kiloliter and his subsequent order dated 20.3.1998 and the orders of the A.D.M. (Civil Supplies) dated 30.3.1998 passed in on 30.3.1998 (Annexure-8 to the writ petition) whereby transportation charges had been reduced to Rs. 56,55 paise per kiloliter could be upheld.
3. The petitioners arc wholesale dealers carrying on business of selling kerosene oil. They were entitled to charge under the Government Orders issued from time to time, the scheduled price as certified by Oil Company, sales tax, commission along with operational expenses, local taxes and transportation cost, if any. On 10.5.1994, a circular was issued by the State Government to the District Magistrates and they were authorised to fix transportation charges on location of storage places. The District Magistrate, Gorakhpur fixed uniform rate of Rs. 100 as transportation charge per kiloliter as the depot was in Gorakhpur city. The depot was shifted from Gorakhpur city to Baitalpur in district Deoria. Upon the representation of the wholesalers' association, due to increase in transportation cost and considering the distance, the District Magistrate, Gorakhpur, by his order dated 19.9.1997 enhanced the transportation charges from Rs. 100 to Rs. 145 per kiloliter. This was cancelled by the impugned order dated 25.10.1997.
4. In the counter-affidavit, the order dated 25.10.1997 has been justified on the basis of Government Order dated 11.11.1993 Issued by the State Government claiming that the order dated 19.9.1997 was contrary to the aforesaid Government Order. Both the reasons do not appear to be correct. Government Order dated 11.11.1993 has been filed along with the counter-affidavit. It after mentioning various factors permitted the District Magistrate to fix the wholesale price of kerosene oil every year after calling a meeting of wholesale dealers and representatives of Oil Companies. The Government Order mentioned that after taking into account the rates of diesel oil and petrol, an increase of 10% can be made. It further provided that if the rates for diesel and petrol are enhanced, then the rates for transportation of kerosene oil can also be increased. To this extent, the Government Order dated 20.5.1990 was modified. On 10.5.1994, the Government issued another Government Order amending Government Order dated 19.5.1990 on the subject of fixation of price of kerosene oil for wholesale dealers. In column 6 of the Government Order dated 10.5.1994 (Annexure-2 to the writ petition) relating to transportation charges, it was provided that the charges could be determined by the District Magistrate on the basis of distance between the oil depot and wholesale dealer's storage place. In pursuance of this Government Order the wholesale price for kerosene oil was fixed from time to time on every 200 liters. The allegation of the petitioners in paragraph 6 of the writ petition that due to difficulty of fixing transportation cost on per round trip, the District Magistrate adopted the procedure of fixing the transportation cost of Rs. 100 per kiloliter for all the dealers treating them as 'local', within the range of 25 kms. of kerosene oil depot is not disputed. When the depot was shifted from Gorakhpur city to Baitalpur district Deoria, the wholesalers' association made a representation for Increase in the transportation charges on the ground mentioned in paragraph 2 of the writ petition that distance between Gorakhpur and Baitalpur is 43 kms. and in terms of round trip 86 kms. while the distance between Chaurichaura and Baitalpur and between Gorakhpur and Chaurichaura is 17 kms. and 26 kms. respectively and in terms of round trip 34 kms. and 52 kms. respectively. The assertions made in paragraph 2 of the writ petition are not disputed in the counter-affidavit by the State. The then District Magistrate accepted the representation of wholesalers' association and enhanced the transportation charges from Rs. 100 to Rs. 145 exercising powers under the circular dated 10.5.1994.
5. The successor District Magistrate in cancelling the order dated 19.9.1997 did not apply his mind to the fact that the order dated 19.9.1997 was issued by his predecessor exercising powers under circular dated 10.5.1994 aforementioned. The stand of respondents in the counter-affidavit that the order of cancellation dated 25.10.1997 was passed as the order dated 19.9.1997 was not in accordance with Government Order dated 11.11.1993 ignores the Government Order issued subsequently on 10.5.1994. We are of the opinion that the procedure of fixing prices as given in Government Order of 1993 having been completely amended by the Government in 1994 so far as transportation charges are concerned, the successor District Magistrate was not justified in cancelling the order of his predecessor dated 19.9.1997 by ignoring it. Furthermore he did not specify in his order dated 25.10.1997 as to which order or direction of the Government was violated by the earlier District Magistrate in passing the order dated 19.9.1997. Furthermore, it was passed without any notice to the petitioners. Consequently this order was bad in law.
6. The order of Additional District Magistrate (Supplies) dated 30.3.1998 (Annexure-8 to the writ petition) by means of which the wholesale rates were refixed at Rs. 550.83 per 200 litres for wholesale dealers for Gorakhpur and at Rs. 546.12 per 200 litres for Chauri Chaura purported to be based on an order dated 26.3.1998 passed by the District Magistrate but the said order dated 26.3.1998 of the District Magistrate has neither been communicated to the petitioners nor filed before this Court nor even its contents disclosed in the counter-
affidavit. This though to show arbitrary action. The refixation of rates is stated in Annexure-8 to be consequent upon shifting of kerosene oil Depot from Gorakhpur to Baitalpur and increase in the commission of kerosene oil dealers but no material has been furnished in this regard before this Court to support it. So the order dated 30.3.1998 Annexure 8 to the writ petition and the order dated 26.3.1998 on which it purports to be based cannot be sustained and have to be struck down.
7. In the result, the writ petition succeeds and the orders dated 25.10.1997 (Annexure-7 to the writ petition) passed by the District Magistrate, Gorakhpur, respondent No. 1, the order dated 30.3.1998 passed by the Additional District Magistrate (Supplies), respondent No. 2 and the order dated 26.3.1998 of the District Magistrate, respondent No. 1 on which it purports to be based, are quashed. The respondents are directed to continue the rates mentioned in the order dated 19.9.1997 (Annexure-6 to the writ petition) till the rates are re-deterrnined in accordance with the Government Order of 11.11.1993 (Annexure-C.A. 1 to the counter-affidavit) and the Government Order dated 10.5.1994 (Annexure-2 to the writ petition) after giving the petitioners due opportunity of hearing.
8. The parties are directed to bear their own costs.