Court No. - 1
Case :- WRIT - C No. - 37932 of 2009 Petitioner :- Shri Kalua Khan And Others Respondent :- State Of U.P. And Others Counsel for Petitioner :- Ms. Vatsala Counsel for Respondent :- C.S.C.
Hon'ble Ramesh Sinha,J. Hon'ble Ajit Kumar,J.
Heard learned counsels for the parties.
By means of this writ petition under Article 226 of the Constitution the petitioners have challenged the Government Order dated 24.12.2008 in its entirety and it is provided vide clause-7 as under:
“7& Fkksd fodzzsrk }kjk mfpr nj fodzsrk dks ,d ckj esa vf/kdre 2400 yhVj rd gh rsy fuxZr fd;k tk;sxk rFkk nks ckj ls vf/kd rsy fuxZr ugh fd;k tk;sxk A ftu mfpr nj fodzsrkvkas ds ;gka vkoaVu 2400 yhVj ls vf/kd gks mu ekeykas esa fu;ekuqlkj 03 ekg eas ijh{k.k dj nwljh mfpr nj fodzrks nqdku [kksys tkus dh dk;Zokgh fu;r izfdz;k ds vuq:i dh tk;sxh A”
The ground taken in the preset writ petition is to the effect that the present Government Order runs counter to the Government Order dated 17.8.2002 and has resulted in severe hardships to the retail distributor in the distribution of kerosene oil.
As the controversy was already engaging the attention of this Court in a number of writ petitions especially the one bearing No. 5407 of 2009 in which also the said Government Order had been put to challenge. However, learned counsels for the parties have very fairly conceded before this Court that the controversy has been put to rest by the Division Bench of this Court in its judgment dated 14.11.2011 in Writ Petition No. 5407 of 2009 upholding the clause-7 of the Government Order. The Division Bench in the concluding paragraphs has held thus:
“We are of the view that the Government order dated 3.7.1990 as well as 24.12.2008 have to harmoniously construed and even if allocation of kerosene oil is more than 2,400 liters, second shop be opened only when there are more than 4000 units, which is the stand taken by the Principal Secretary, Food and Civil Supplies in his affidavit as quoted above. It is has been stated by the Principal Secretary, Food and Civil Supplies in his affidavit that the policy of the government is still to follow the Government order dated 3.7.1990. We also notice that Clause 7 of the government order dated 24.12.2008 does not make it mandatory to open the shop when the allocation of kerosene oil is more than 2,400 liters rather it requires consideration only. In view of the stand taken by the Principal Secretary, Food and Civil Supplies as noticed above, we are of the view that the Government Order dated 24.12.2008 has to be interpreted accordingly.
Learned standing counsel has also brought into our notice the decision of Division Bench dated 5.2.2009 passed in writ petition no. 1252(M/B)/09, Ram Kumar Agrnihotri Vs. state of U.P. and others wherein the writ petition challenging the validity of Government Order dated 24.12.2008 has been upheld. The Division Bench has laid down as follows:
"We have gone through the Government order and find that it lays down the criteria, manner and the procedure as to how the Kerosene oil will be distributed to the dealers. We do not find any clause of the aforesaid government Order which lays down a scheme of distribution of Kerosene oil as offensive. Moreover, when the petitioner himself can not be treated to be an aggrieved person nor the case pleaded by him can be said to be in public interest, the writ petition can not be entertained.
The supply of kerosene oil to distributors, wholesale dealers and petty dealers and, thereafter to consumers, is to be made in a manner so that the public /consumer may get the same without any hindrance at fixed rate and the given quantity. Any scheme for distribution of Kerosene oil, keeping this purpose in mind ensuring supply to the consumers at the prescribed rate and quantity, normally would not call for any interference by this Court. We, therefore, do not find any force in the writ petition.
Writ petition is dismissed accordingly."
The above judgement of the Division Bench although does not interfere with the Government Order dated 24.12.2008 but has not laid down that the second fair price shop be opened as and when there is allocation of kerosene oil to the extent of 2400 liters. Thus, above judgement does not take and contrary view to which we are taking in the present writ petition.
In view of the aforesaid, we are of the view that clause 7 of the Government Order need not be quashed. We, however, are of the view that according to the clause 7 of the Government order second fair price shop can be opened only when the units are more than 4000 as required by the Government Order dated 3.7.1990.
The writ petition no. 5407 of 2009 is disposed of accordingly.
In view of the above as we have stated above, the writ petition 54874 of 2001 deserves to be disposed of with the direction to the respondent no. 3 to ensure supply as per the order dated 8.7.2011.
In writ petition no. 60384 of 2011, the order dated 14.7.2011 in so far as petitioner's claim has been rejected on the ground of circular dated 27.6.2011 of the Commissioner , Food and Civil Supplies is set-aside. The Tehsil Level Committee may consider the claim of the petitioner, Subodh Kumar for allotment of second fair price shop on the ground that there are more than 4000 units.
All the three writ petitions are disposed of accordingly.”
In view of the above this writ petition also stands disposed of in terms of the judgment and order dated 14.11.2011 passed in Writ Petition No. 5407 of 2009 and connected writ petitions.
Order Date :- 26.9.2019 Nadeem Ahmad (Ajit Kumar,J.) (Ramesh Sinha,J.)