Judgment:
ORDER
1. Kerosene is an essential commodity and like food grains, sugar etc., it is distributed from licenced fair price depots throughout the State of Karnataka. The grant of licences for distribution of these commodities is regulated by the Karnataka Essential Commodities Licensing Order, 1986, which envisages a 3 tier system of distribution viz., wholesale dealers, retail dealers and hawkers. The wholesale dealers are entitled to sell one or more of the essential commodities specified in the schedule to other dealers or to bulk consumers whereas a retail dealer is a person who is not a wholesale dealer but is authorised to trade in articles mentioned in the said schedule. A hawker on the other hand is a person, who carries kerosene from place to place for sale to persons other than a dealer. The authorities, it appears, noticed that retail kerosene licensees were selling kerosene by engaging hawkers and bullock carts, which was against the policy of issuing retail licences. It was felt that persons or societies, who had obtained retail licence should carry on their business only in their shop during the prescribed working hours, which the retail dealers were not doing. A circular was accordingly issued on the 7th of October, 1993 by the Joint Director, PDS of the Department of Food and Supplies, Bangalore, instructing the Deputy Directors in Bangalore informal rationing area to issue notices to all such retail licensees as were selling kerosene by engaging hawkers and bullock carts directing them to effect the sales from their licenced premises, failing which proposing to take action by way of cancellation of their licences. Pursuant to the said directions, the Deputy Directors appear to have issued certain notices to some of the retail licensees, who were found to be indulging in the sale of kerosene by engaging hawkers or bullock carts instead of doing their business from the licenced premises. Aggrieved, the petitioner, which is an organisation comprising the kerosene retail dealers of Karnataka, has filed the present petition questioning the validity of the circular issued by the Joint Director and a mandamus restraining the respondents from interfering with their right to sell kerosene in retail.
2. The respondents have filed a statement of objections, in which the circular instructions have been justified on the ground that the retail kerosene dealers were not doing their business properly from their shops warranting action against them. It is urged that while the hawkers can sell kerosene from bullock carts in a particular area without being confined to any shop, a retail dealer must necessarily sell the said commodity from a specified premises mentioned in the licence. The circular issued by the Joint Director, it is urged, is nothing but enforcement of the conditions of the licence subject to which the retail dealers are required to distribute kerosene among the card holders.
3. Mr. Gopala Gowda, Counsel for the petitioner, argued that the retail dealers were not necessarily required to sell kerosene from any specified premises or shops. He urged on the basis of the conditions stipulated in two licences Annexure-E and F to the writ petition that the licensees, in whose favour the said licences have been issued have been permitted to sell kerosene from the fair price shops. He contended that a similar condition existed in the licences issued in favour of other members of the petitioner-Federation entitling them to sell kerosene in front of the fair price depots from where the card holders purchase food grains, sugar and edible oil etc. Insistence on the part of the authorities for the retailers to sell kerosene only from a premises or a shop was, according to the learned Counsel, sanctioned neither by the rules nor otherwise provided for by the terms of the licences. I am not, however, impressed by this submission. The Licensing Order makes a distinction between a 'Retail Dealer' and a 'Hawker'. Para 2(f) of the order defines the term 'Hawker' thus:
'Hawker means a person who carries kerosene from place to place for sale to persons other than a dealer; provided that' the Licensing Authority may in public interest also specify the place or places in which, or hours during which, the hawker shall sell kerosene'.
4. The expression 'Retail Dealer' is also defined by Para 2(h) of the Order, as under:
' 'Retail Dealer' means a dealer dealing in any one of the trade articles mentioned in Schedule I and who is not a wholesale dealer'.
5. A closer look at the definition of the expression 'Hawker' extracted above would show that a 'Hawker' can carry kerosene from place to place for sale even though the Licensing Authority may in public interest specify the place or places, in which, or hours during which, the hawker shall sell kerosene. That however is not true insofar as the retail dealers are concerned. The retail dealers by their very definition do not have the liberty of carrying the commodity from one place to the other for sale. The sales to be made by them are on the contrary subject to the terms and conditions stipulated in the licence issued in their favour. Para 2(a) of the prescribed licence form requires the authority to identify the place of business for retail licensees and reads thus:
'2(a) The Licensee shall carry on the aforesaid business at the place mentioned below. .....'.
6. It is therefore apparent that in the case of a retail dealer the licence issued in his favour permits him to carry on business only at the place mentioned in his licence and at no other place. The authorities would thus be within their rights to insist that the retail dealers shall not carry on their business from any place other than the one mentioned in their licence. This is precisely what the circular issued by the Joint Director also implies. The circular directs the Deputy Directors concerned to issue notices to retail dealers, where they are not carrying on their business from the places which are licensed for such business. When so interpreted and understood, the circular does not suffer from any illegality or impropriety to warrant interference from this Court. It is obvious that if the licence issued to any individual retail dealer empowers .him to sell kerosene from a fair price shop as is the position in the case of Annexure-E and F, the authorities cannot prevent him from doing so,' for in those cases, the fair price shop is the licensed place of their business. Similarly if there are other retail dealers, who have a similar provision in the licence issued in their favour, they may also be entitled to carry on their business from the fair price shop or other place mentioned in Para 2(a) of the licence. In cases however where the retail dealers propose to sell or are selling from places other than the ones mentioned in the licence, the authorities would be justified in taking appropriate action permissible in law including one by way of cancellation of the licence if the licensee does not despite notice rectify the position. Whether or not there has been any such violation by any retail dealer will therefore depend upon the terms of the licence issued in his favour and the place of business identified therein. All that can be said for the present is that there is no general right vested in the retail dealers to sell kerosene either by engaging hawkers for the purpose or using bullock carts for effecting sales from place to place. Apart from the fact that any such sale is not compatible with the scheme of the rules on the subject, the same is also likely to adversely affect the hawkers who have been licensed for the purpose. There is no gainsaid that a retail dealer cannot so conduct his business as to become a Hawker. I have therefore no hesitation in holding that the members of the petitioner-association can and are entitled to carry on their business only from the places that are licensed in terms of the licences issued in their favour. The impugned circular dated 7th of March, 1993 instructing the Deputy Director to take proper action in case there is any violation of the terms of the licence therefore does not suffer from any illegality.
7. The only other question that requires consideration is whether the authorities can be prevented from issuing fresh licences if they otherwise consider it proper to do so. The case of the petitioner-Federation is that since a large number of retail licences have already been issued, there is no room for issue of any further licences as the issue of any such licences is bound to adversely affect their livelihood. I see no substance in this submission either. Whether or not the situation demands any addition to the licences already issued is a matter that has to be considered by the authorities concerned. The number of licences required for any particular area would depend upon the number of card holders and the efficiency of the system already provided. If the authorities consider the number of licences already existing to be insufficient to provide efficient service to card holders they can certainly issue fresh licences to meet any such requirement. Issue of any fresh licences cannot be prevented on the basis of the apprehension of the petitioner-Federation that the same is likely to affect the interest of the existing licensees, nor can the interests of the consumers at large for whose benefit and convenience such licences are issued be sacrificed only to protect the interest of the licensees. As between the consumer and the licensees engaged to provide service for him the interest of the former is paramount. I have therefore no difficulty in rejecting even the second limb of the case set up by the petitioner.
8. In the result, this writ petition fails and is accordingly dismissed with costs assessed at Rs. 1,000/-.