Hon'ble Shashi Kant,J.
Heard Sri Manish Goyal, learned counsel for the petitioner, Sri P.N. Saxena, learned Senior Counsel appearing for the respondent no. 5 and learned Standing Counsel appearing on behalf of the respondent nos. 1, 2, 3 and 4.
By means of the present writ petition, the petitioner has challenged the order dated 31.01.2013 passed by Sri Deepak Trivedi, Principal Secretary (Food & Civil Supplies), Government of U.P.
The brief facts of the case are as follows :
1- The Burma Shell Oils Storage and Distributing Company India Ltd. was a Public Limited Company registered under the Companies Act. Subsequently, it was nationalized and all shares vest in the President of India. It has been renamed as Bharat Petroleum Corporation Ltd. It is being referred to as the Company in the judgment.
2- The Company granted agencies for distribution agency of Kerosene Oil to M/s Gulab Store, Subhash Market, Hamirpur (M/s Gulab Store) on 5.2.1953. The area of operation as mentioned in the agreement is Hamirpur with such working outstanding as are allocated to it from time to time.
3- In pursuance of the allocation by the Company, the licences were also obtained by M/s Gulab Store from District Supply Officer, Hamirpur (DSO). Apart from other places, it licenses were for place at Bharua Sumerpur Korara ad Maudaha District Hamirpur.
4- The State Government fixes quota of Kerosene Oil to be released by the Company. The quota of kerosene oil for block Bhaura Sumerpur was fixed at 158 KLs of kerosene oil. This was being distributed by M/s Gulab Store.
5- It appears that the licence of M/s Gulab Store was not renewed for Korara and Maudaha district Hamirpur and M/s Gulab Store filed Civil Misc. Writ Petition No. 7041 of 2001 for a direction to revalidate the licences at therse places. In this writ petition, an interim order of status quo was passed on 26.02.2001.
6- Later on, the Company also granted agency for distribution to kerosene oil to M/s Dheeraj Kumar Alok Kumar (M/s Dheeraj Kumar) for Block Bhaura Sumerpur district Hamirpur on 5.3.2001. However, its application for grant of the licence was not being considered by the DSO, due to the stay order dated 26.2.2001 granted in Writ Petition No. 7041 of 2001 and in this respect an order was also passed on 1.12.2001.
7- M/s Dheeraj Kumar filed writ petition no. 2366 of 2002 for quashing the order dated 1.12.2001 and a direction to grant it license for the distribution kerosene oil in Bhaura Sumerpur district Hamirpur.
8- Writ Petition Nos. 7041 of 2001 and Writ Petition No. 2368 of 2002 were consolidated and thereafter interim order dated 26.02.2001 was modified on 30.1.2002.
9- After modification of interim order on 30.01.2003, M/s Dheeraj Kumar was also granted licence to sell Kerosene oil in Block Bhaura Sumerpur and was initially allotted 48 KLs and thereafter increased to 72 KLs with effect from March, 2003. Thus, in Block Bhaura Sumerpur, M/s Dheeraj Kumar started receiving 72 KLs kerosene oil kerosene oil and M/s Gulab Store were receiving 86 Kls of kerosene oils for distribution, out of total quota 158 Kls kerosene oil for Bhaura Sumerpur.
10- The Central Government started a scheme known as Jan Kerosene Pariyojna (the Scheme) in the year 2005. It appears that under the Scheme, the kerosene oil for the entire block was to be distributed by one agency.
11- The State Government selected M/s Dheeraj Kumar as a distributing agency under the Scheme. It started getting entire quota of 158 Kls of kerosene oil for block Bhaura Sumerpur. Thereafter a dispute arose between the two parties as to how much quota be released to them for block Bhaura Sumerpur.
12- The Scheme was continued by the order dated 19.7.2006, and thereafter, M/s Gulab Store filed Writ Petition No. 42695 of 2006 for quashing of this order and reinstating quota of 86 Kls per month of kerosene oils for block Bhaua Sumerpur.
13- Writ Petition No. 7041 of 2001, 2368 of 2002 and 42695 of 2006 were taken up together and were dismissed as infructuous on 21.1.2008. However the dispute between the two parties for allotment of quota of kerosene oils for block Bhaura Sumerpur continued.
14- M/s Gulab Store filed another Writ Petition No. 57641 of 2008 for a direction to restore the quota of kerosene oil for Block Bhaura Sumerpur. This writ petition was disposed by this Court on 21.11.2008 and the matter was relegated to the Commissioner (Food and Supply), Lucknow (the Food Commissioner).
15- The parties were permitted to file their representations and thereafter the Food Commissioner was to decide the claim of the parties after calling report from the District Magistrate, Hamirpur (the D.M.) 16- The Food Commissioner by his order dated 20.01.2009 fixed 300 KLs per month to M/s Gulab Stores and 158 Kls per month to M/s Dheeraj Kumar.
17- M/s Gulab Store has filed Writ Petition No. 4348 of 2009 against the order dated 21.01.2009 of the Food Commissioner fixing quota of 158 Kls to M/s Dheeraj Kumar.
18- There is no dispute between the parties that so far as M/s Dheeraj Kumar is concerned, it can only distribute kerosene oil in block Bhaura Sumerpur district Hamirpur and could be allotted kerosene oil for this block only, whereas, the area of operation of M/s Gulab Stores is in the entire district Hamirpur with the outstanding as allotted to it.
19- There is some dispute between the parties, whether M/s Gulab Store was also allocated outstanding at blcok Bharua Sumerpur or not but it is not disputed that M/s Gulab Store has a licence from the DSO from Bharua Sumerpur also.
20- It appears that during pendency of aforesaid writ petition, M/s Gulab Store also filed representation before the State Government that the Scheme has come to an end and its 86 KLs for block kerosene oil for Block Bharua Sumerpur be restored.
21- On the recommendation of the Company, the State Government passed an order dated 30.4.2010 restoring the quota of 86 Kls for block Bhaura Sumerpur to M/s Gulab Store. M/s Dheeraj Kumar has filed Writ Petition No. 33395 of 2010 against this order of the State Government .
The aforesaid writ petitions have been decided by the Division Bench of this Court vide order dated 14.8.2012 with the following observations and directions :
"1- It is not necessary for us to decide the submission raised by the parties. The question, how much quota should allocated to the block in a district and thereafter how much of that quota should be distributed by which agency is to be decided by the State Government. The State Government had decided it by its order dated 31.01.2010 but without affording any opportunity to M/s Dheeraj Kumar. This was illegal. The order is against the principles of natural justice.
2- In view of above, the order dated 31.01.2010 is quashed. The parties may appear before the State of U.P. Through Secretary (Food and Civil Supply) U.P. Shasan, Lucknow, (Respondent-1) on 10.9.2012 and file their respective claims before him. Respondent no. 1, if necessary, may obtain report from the District Magistrate and the Company thereafter pass appropriate order fixing quota for block Bahura Sumerpur district Hamirpur. This may be done at an early date, if possible, within three months from the date of receipt of their representations.
3- We have not said anything about the order of the Food Commissioner dated 21.01.2009 as this order was later on superseded by the order of State Government. We hereby clarify that the respondent no. 1 will decide the case independently on merit, in accordance with law, without being influenced by the order dated 20.1.2009 of the Food Commissioner."
In pursuance of the said order, the impugned order has been passed by Sri Deepak Trivedi, Principal Secretary. By the impugned order the claim of the petitioner for the allotment of 86 KLs kerosene oil for Sumerpur block has been rejected which is being challenged in the present writ petition.
Sri Manish Goyal, learned counsel for the petitioner submitted that before the State Government, the petitioner has challenged the order of Sri Dheeraj Trivedi, the then Commissioner Food and the impugned order has been passed by same Sri Deepak Trivedi as a Principal Secretary (Food and Civil Supply) Government of U.P. By the impugned order he has confirmed his earlier order passed as a Commissioner. The impugned order is fully influenced by his earlier order. He has submitted that since he has decided the matter as a Commissioner and his order is subject matter of review, he should not have decided the matter. Justice should not only done but seems to have been done.
Sri P.N. Saxena, learned Senior Counsel appearing for respondent no. 5 who is the main contesting party has very fairly submitted that let the matter be remitted back to the State Government to decide the matter afresh by the Principal Secretary other then Sri Deepak Trivedi.
In view of the above and without going into the merit of the writ petition, the writ petition is allowed on the short points as stated above remitting back the matter to the State Government with the direction to the Principal Secretary other then Sri Deepak Trivedi to decide the matter afresh in the light of the decision of this Court dated 14.8.2012 after giving an opportunity of hearing to the parties concerned. Petitioner is directed to file a certified copy of this order within two weeks, and the Principal Secretary, (Food and Civil Supply) Government of U.P. is directed to decide the matter afresh within another period of three months from the date of receipt of the certified copy of this order in accordance with law.
Order Date :- 28.10.2014 Monika