ORDER
A.K. Patnaik, C.J.
1. This is a reference made to us pursuant to an order dated 21-11-2000 passed by learned Single Judge in W.P. No. 4602 of 2000.
2. The relevant facts briefly are that the Collector, Bhopal issued an order dated 12-7-1999 in exercise of powers under Clause 6(2) of the M.P. Essential Commodities (Price Exhibition and Price Control) Order, 1977 directing that ail the petrol and diesel pump owners must supply cash memos to consumers in respect of petrol and diesel failing which appropriate legal action shall be taken.
3. The petitioners challenged the order dated 12-7-1999 of the Collector, Bhopal in the present writ petition under Article 226 of the Constitution and contended before the learned Single Judge that under Condition No. 8 of the licence of the petrol and diesel pump owners issued under the M.P. Motor Spirit and High Speed Diesel Oil (Licensing and Control) Order, 1980 (for short 'the Control Order, 1980'). it was not necessary to issue a receipt or invoice, unless demanded in case of sale of motor spirit. In support of this contention, the Counsel for the petitioners relied on a decision of the Division Bench of this Court in Virendra Singh v. Collector, Indore and Ors. : AIR1986MP159 .
4. The learned Single Judge, however, found that under Sub-clause (2) of Clause 6 of the M.P. Essential Commodities (Exhibition of Prices & Price Control) Order, 1977 (for short 'the Control Order, 1977'), a dealer was required to issue to every purchaser a correct receipt or invoice showing the name and address of the customer, the date of transaction, the essential commodity sold, the quantity, the rate and the total amount charged and this provision in the Control Order, 1977 had not been taken into consideration by the decision in Virendra Singh v. Collector Indore and Ors. (supra). In the order dated 21-11-2000, the learned Single Judge, therefore took the view that the decision rendered in the case of Virendra Singh v. Collector Indore and Ors. (supra), the requires to be re-considered by a Larger Bench. This is how the matter has been referred to us.
5. We have heard Mr. V.K. Shukla, learned Deputy Advocate General for the State. No one however, has appeared for the petitioners although the name of the Counsel for the petitioners has been shown in the cause-list.
6. We find that by Central Government Order No. S.O. 681(E), dated 30th November, 1974 issued under Section 5 of the Essential Commodities Act, 1955 (for short 'the Act'), the Central Government delegated its power under Sub-section (1) of Section 3 of the Act to the State Government to make orders to provide for matters specified in Clauses (d), (e), (f), (g), (h), (i), (ii) and (j) of Sub-section (2) of Section 3 of the Act in relation to all essential commodities other than foodstuffs and fertilizers subject to conditions specified therein and by another Central Government Order No. S.O. 682(E), dated 30th November, 1974 issued under Section 5 of the Act, the Central Government delegated its powers under Sub-section (1) of Section 3 of the Act to the State Government to make orders to provide for matters specified in Clause (c) of Sub-section (2) of Section 3 of the Act in relation to all essential commodities, other than foodstuffs and fertilizers subject to condition specified therein.
7. In exercise of these powers delegated under Central Government Order No. S.O. 681(E) and Central Government Order No. S.O. 682(E), dated 30th November, 1974 in relation to essential commodities other than foodstuffs and fertilizers and in exercise of powers delegated to it under other orders of the Central Government issued under Section 5 of the Act in relation to foodstuffs, the State Government made Control Order, 1977. In the Control Order, 1977, elaborate provisions have been made regarding exhibition of price lists (Clause 3), charging of prices (Clause 4), maintenance of accounts etc. (Clause 6), regulation and supply and distribution (Clause 7) and powers of entry, search and seizure, etc. (Clause 8). In the Control Order, 1977, the definition of 'essential commodity' in Clause 2(b) is given to mean an essential commodity within the meaning of Clause (a) of Section 2 of the Act and specified in the Schedule appended to the Control Order, 1977 and a number of essential commodities have been mentioned in the Schedule appended to the Control Order, 1977. Under Serial No. 11 of the Schedule as amended, the essential commodities 'Petrol and Diesel (H.S.D.)' have been mentioned. The result is that the Control Order, 1977 is applicable to Petrol and Diesel (H.S.D.). Sub-clause (2) of Clause 6 of the Control Order, 1977, referred to by the learned Single Judge in the order dated 21-11-2000 reads thus:
6. Maintenance of accounts etc.--
(1) .... .... .... ....(2) A dealer shall issue to every purchaser a correct receipt of invoice, showing the name and address of the customer, the date of transaction, the essential commodities sold, their quantity, the rate and the total amount charged.
Thus, under Sub-clause (2) of Clause 6 of the Control Order, 1977, a dealer of petrol and diesel (H.S.D.) is required to issue to every purchaser a correct receipt or invoice, showing the name and address of the customer, the date of transaction, the essential commodity sold, the quantity and the rate and the total amount charged.
8. We further find that the Control Order, 1980 was made by the State Government in exercise of its powers delegated to it by the Central Government by Order No. S.O. 681 (E), dated 30th November, 1974 only. In the Control Order, 1980, which applies to only Motor Spirits and High Speed Diesel Oil, elaborate provisions have been made with regard to regulation of sale and supply of Motor Spirit and High Speed Diesel Oil (Clause 3) including maintenance of true and correct accounts of purchase, sale and storage of oil [Sub-clause (4) of Clause 3], licensing of dealer (Clauses 4 to 9), cancellation or suspension of licence (Clauses 11 and 12), deposit of security and forfeiture of security deposit (Clauses 14 and 15), appeal and revision (Clauses 16 and 17) and powers of entry, search and seizure (Clause 19). We further find that under Clause 6 of the Control Order, 1980, a licence for carrying on the business in diesel and oil is issued in Form B. In Form B, various terms and conditions of the licence have been mentioned and Clause 8 of the terms and conditions of the licence as amended with effect from 13th May, 1986 reads as follows:
8. The licensee shall, except when specially exempted by the State Government, issue to every customer if so demanded by him a correct receipt or invoice, as the case may be, giving his own name and address and the name and address of the customer, the date of transaction, the quantity of oil sold and the rate and total price charged and shall keep the counter-foil or duplicate of the same, in the form of a book, to be readily available for inspection on demand by the licensing authority or any officer authorized by it on his behalf.
It will be clear from language of Clause 8 of the terms and conditions of licence in Form B issued under Clause 6 of the Control Order, 1980 that the licensee shall issue to every customer, if so demanded by him a correct receipt or invoice, as the case may be, giving his own name and address and the name and address of the customer, the date of transaction, the quantity of oil sold and the rate and total price charged.
9. Thus, there is a difference in the language of Sub-clause (2) of Clause 6 of the Control Order, 1977 and the language of Clause 8 of the terms and conditions of licence in Form B issued under Clause 6 of the Control Order, 1980. Whereas under Sub-clause (2) of Clause 6 of the Control Order, 1977 a dealer has to issue to every purchaser a correct receipt or invoice showing the particulars mentioned therein, under Clause 8 of the terms and conditions of the licence in Form B issued under Clause 6 of the Control Order, 1980, a licensee is required to issue to every customer 'if so demanded by him' a correct receipt or invoice, giving particulars mentioned therein. In other words, under Sub-clause (2) of Clause 6 of the Control Order, 1977, it is obligatory for the dealer to issue to every purchaser, a correct receipt or invoice, but under Clause 8 of the terms and conditions of the licence issued under Clause 6 of the Control Order, 1980, it is obligatory for the dealer to issue a correct receipt or invoice only if the customer demands the same.
10. The question, therefore, arises whether a dealer of oil to whom the Control Order, 1980 is applicable is to comply with the provision of Clause 8 of the terms and conditions of the licence in Form B issued under Clause 6 of the Control Order, 1980 and issue a receipt or invoice to the customer only where the customer demands the same or he has also to comply with the provisions of Sub-clause (2) of Clause 6 of the Control Order, 1977 and has to issue to every purchaser a correct receipt or invoice whether he demands the same or not. The answer to this question lies in two different definitions of 'dealer' given in the Control Order, 1977 and the Control Order, 1980.
11. Clause 2(a) of the Control Order, 1977 is quoted herein below:
(a) 'dealer' means a person who carries on the business of selling by retail or wholesale or storing for sale by retail or wholesale any commodity whether or not such business is carried in addition to any other business; but does not include a hawker or a pedlar, or an oil company storage depot or installation wherefrom no sales are made to general public.
A reading of the definition of 'dealer' in the Control Order, 1977 would show that it means a person who carries on business of selling by retail or wholesale or storing for sale by retail or wholesale any commodity whether or not such business is carried in addition to any other business.
12. The definition of 'dealer' in Clause 2(b) of the Control Order, 1980 is somewhat restricted and is quoted herein below:
(b) 'Dealer' means a person engaged in the business of purchase, sale or storage for sale of Motor spirit and or High Speed diesel oil, or both on the basis of an agreement with an Oil Company, but does not include an Oil Company.
It will be clear from the aforesaid definition of 'dealer' in the Control Order, 1980 that the dealer means a person engaged in the business of purchase, sale or storage for sale of motor spirit and or high speed diesel oil or both on the basis of an agreement with an Oil Company. It, thus, appears that the Control Order, 1980 applies only to dealers of Motor Spirit and High Speed Diesel Oil carrying on their business on the basis of an agreement with an Oil Company.
13. The expression 'Oil Company' has also been defined in Clause 2(d) of the Control Order, 1980, which is quoted below:
(d) 'Oil Company' means any of the Oil Companies specified below:
(i) Indian Oil Corporation Ltd.;
(ii) Hindustan Petroleum Corporation Ltd.;
(iii) Bharat Petroleum Corporation Ltd.;
(iv) The Indo Burma Petroleum Company Limited;
(v) Hindustan Petroleum Corporation Ltd. (VMU).
'Oil Company', therefore, means the five Government or Public Sector Companies mentioned against Serial Nos. (i), (ii), (iii), (iv) and (v) in Clause 2(d) of the Control Order, 1980. Obviously, a dealer who carries on the business in Motor Spirit and High Speed Diesel Oil Companies, has to sell Motor Spirit and High Speed Diesel Oil in accordance with the instructions of the Government or Public Sector Companies with regard to prices at which the product is to be sold and this may be the reason why in Clause 8 of the terms and conditions of the license in Form B issued under Clause 6 of the Control Order, 1980, it has not been made obligatory for the dealer holding the licence to issue to every customer a correct receipt or invoice unless demanded by the customer.
14. Such a dealer carrying on the business in Motor Spirit and High Speed Diesel Oil on the basis of an agreement with the Oil Company obviously cannot be asked to comply with the provisions of the Control Order, 1980 as well as Control Order, 1977 because, as we have seen, elaborate provisions have been made in the Control Order, 1977 as well as the Control Order, 1980, with regard to regulation of supply and distribution and other matters and provisions in this regard in the Control Order, 1977 and the Control Order, 1980 also are different. It further appears that the Control Order, 1977, which has been issued by the State Government in exercise of its powers delegated by the Central Government under the Central Government Order Nos. S.O. 681 (E) and S.O. 682 (E), dated 30th November, 1974, has been issued not only to provide for matters specified in Clauses (d), (e), (f), (g), (h), (i), (ii) and (j) contained in Sub-section (2) of Section 3 of the Act but also to provide for matters specified in Clause (c) of Sub-section (2) of Section 3 of the Act, namely, control of prices at which essential commodities are bought and sold. On the other hand, the Control Order, 1980 has been made, as we have seen in exercise of powers delegated by the Central Government to the State Government under Central Government order Nos. S.O. 681 (E), dated 30th November, 1974 to provide matters specified in Clauses (d), (e), (f), (g), (h), (i), (ii) and (j) contained in Sub-section (2) of Section 3 of the Act and has not been made in exercise of its powers delegated to it under Central Government Order No. S.O. 682 (E) to provide for matters specified in Clause (e) of Sub-section (2) of Section 3 of the Act relating to control of prices at which essential commodities are bought and sold. This explains why the Control Order, 1980 does not make elaborate provisions relating to exhibition of price list, charging of prices, issue to every purchaser a correct receipt or invoice. Since the Control Order, 1980 applies to dealers carrying on the business in Motor Spirit and High Speed Diesel Oil on the basis of an agreement with the Government or Public Sector Oil Companies, the State Government has not thought it necessary to provide strict provisions with regard to price control under the Control Order, 1980 and has, therefore, provided in Clause 8 of the terms and conditions of the licence in Form B issued under Clause 6 thereof that the licensee shall issue an invoice or receipt only if the customer demands the same.
15. We are, thus, of the considered opinion that the decision of a Division Bench of this Court in Virendra Singh v. Collector, Indore and Ors. (supra), rendered in the case of a petrol pump which presumably was run by the dealer in that case on the basis of an agreement with an 'Oil Company' as defined in Clause 2(d) of the Control Order, 1980 was correct in the facts of the case. We further hold that while Clause 8 of the terms and conditions of the licence in Form B issued under Clause 6 of the Control Order, 1980 will be applicable to a dealer of Motor Spirit and High Speed Diesel carrying on his business on the basis of an agreement with an Oil Company as defined in Clause 2(d) of the Control Order, 1980, Sub-clause (2) of Clause 6 of the Control Order, 1977 will apply to all other dealers carrying on business of petrol and diesel (HSD).
16. We however, find that Clause 10 of the Control Order, 1980 provides that a licensee shall comply with any direction that may be given to him from time to time by the authorized officer or the licensing authority or the Director, as the case may be, by a general or special order in writing in regard to purchase, sale and storage for sale and disposal of oil. Hence, the authorities mentioned in Clause 10 of the Control Order, 1980 can issue any direction in addition to those contained in the terms and conditions of the licence in Form B and if such directions are issued, the licensee under the Control Order, 1980 will have to comply with such directions as well as the terms and conditions of the licence in Form B.
16. The matter will now be placed before the appropriate Bench for hearing on merits.