Judgment:
G.C. Bharuka, J.
1. These Writ Petitions have been filed for quashing memo dated 28.12.95 (annexure 'A') issued by the respondent-Deputy Commissioner permitting the 4th respondent to sell Kerosene Oil to the card holders by opening a fair price depot at Beigavi village. The said memo seems to have been issued pursuant to the order dated 4.11.95 (annexure 'R1') passed by the Minister for Food and Civil Supplies Department.
2. For proper appreciation of the rival contentions raised by the parties at the Bar, I find it more convenient first to refer to the statutory provisions which have material bearing on the issues involved in the present case. Section 3 of the Essential Commodities Act, 1955 ('Act' for short) empowers the Central Government to frame orders, inter alia, to secure equitable distribution and availability at fair prices of essential commodities. Section 5 of the Act authorises the Central Government to delegate legislative powers to make orders or issue notifications under Section 3 of the Act to the State Government. It is not in dispute that such delegation has been made by the Central Government in favour of the State Government. Admittedly, kerosene oil is also an essential commodity for the purposes of the Act. Therefore both the Central Government as also the state Government can make orders in terms of Section 3 of the Act for the purposes enumerated in the said Section,
3. The State Government pursuant to the powers conferred on it under Section 3 of the Act has made the Karnataka Essential Commodities Licensing Order, 1986 (in short 'the Licensing Order' only). This order inter alia makes it mandatory for the commission agents, dealers and purchasers of essential commodities, as detailed in Schedule-1 to the Licensing Order, to obtain licences for carrying on their business under and in accordance with the provisions of the Licensing Order and the terms and conditions of the Licence granted to them. Kerosene oil is also one of the commodities mentioned in Scbedule-1 of the Licensing Order. Therefore, any person who intends to carry on business in any capacity in kerosene oil has to necessarily obtain a licence under this order.
4. It is a matter of common knowledge and admitted at the Bar by the Learned Advocate General, who has been assisted by the Secretary to the Food and Civil Supplies Department of the State Government, that various essential commodities like food grains, sugar, cloth, palmolein oil and kerosene oil apart from others are being distributed to the card holders under the scheme of 'public distribution system' through authorised fair price depots. It seems that the said 'public distribution system' was being operated till upto 7.1.93 under some executive instructions. But advisedly, for more effective implementation of the said 'public distribution system', a statutory order, namely the 'Karnataka Essential Commodities (public distribution system) Control Order, 1992' (in short the 'Control Order' only) was framed by the State Government under Section 3 of the Act.
5. Some of the material definitions as contained in the control Order are as follows:-
2. Definition: In this order, unless the context otherwise requires-
(a) xxx xxx xxx
(c) 'Authorised Dealer' means a person, a firm, a corporation, an association of persons, or a Co-operative Society or any other institutions authorised as an agent by the Government or by an authority authorised by the Government in that behalf to be a wholesale dealer engaged in the purchase of essential commodities and sale of these essential commodities to the fair price depots for distribution to ration card holders.
(d) 'Authorised Authority' means any officer appointed by the Government in this behalf, to exercise the powers and perform the duties of the Authorised Authority under this Order and different Authorised Authority may be appointed for different areas or for different classes of dealers in different areas of the State.
(e) 'Authorisation' means an authorisation issued under Clause 3 of this Order.
(f) 'Fair Price Depot means a depot which is authorised to distribute the essential commodities under the Public Distribution System to the' ration card holders.
(j) Essential Commodities' means essential commodities as defined under the Essential Commodities Act, 1955 and meant for Public Distribution System by the State or Central Government or any other authority authorised in that behalf by such Government.
(I) 'Public Distribution System' means a scheme of distribution system through which the State Government distributes foodgrains to the ration card holders through the fair price depots at a fair price fixed by the Government.
6. As noticed above, it is amply clear that the essential commodities meant for distribution through public distribution system can be distributed/sold to the ration card holders only through a fair price depot' and that too only at a price fixed by the Government,
7. The said intention has been manifested more eloquently under Clause 3(2) of the Control Order which provides that no person other than the authorised dealer or fair price depot shall sell any essential commodities supplied by the Government meant for distribution under Public Distribution System except in accordance with the terms and conditions specified in the authorisation issued in this behalf by the authorised authority
8. Further, the authorisation can be granted only after the ''Authorised Authority' calls for application by a public notice in the manner prescribed under Clause 4 of the Control Order. The various other powers as contemplated under Clause 10 which provides for power to refuse authorisation, Clause 11 which pro/ides for assignment of ration cards, Clause 12 which provides for consequences for contravention of conditions of authorisation and etc., can be exercised only by the 'authorised authority' as defined under Clause 3(d) of the Control Order. Admittedly, so far, no officer has been designated by the State Government as an 'authorised authority' and therefore, none of the said powers can be exercised by any officer of the State.
9. It further transpires that the Central Government being committed to open market economy in deviation to its earlier policy, appears to have decided to provide for a liberal marketing system for sale and distribution of kerosene oil. Accordingly, it has come out with an Order called The Kerosene (Restriction on use and Fixation of Price) Order, 1966 which has come into force from 18.3.1966. According to this order, kerosene oil meant for marketing or selling at declared prices through public distribution system as envisaged by the State Governments has to be effected only through fair price depots.
10. Therefore, from the provisions of both the Central as also State's Orders made under Section 3 of the Act, it is amply clear that kerosene oil meant to be distributed or sold to the ration card holders at a fixed price can be canalised only through the persons holding authorisation under the provisions of the Control Order.
11 Coming to the facts and circumstances of the present case, admittedly, neither the petitioner nor the 4th respondent has been granted any authorisation in terms of Clause 2(e) of the Control Order as has been admitted even by the Deputy Commissioner in his statement of objections.
12. Accordingly annexure 'A', whereunder the 4th respondent has been authorised to distribute kerosene oil cannot be sustained in law and the same is quashed. It is further clarified that neither of the contesting parties will have the authority to distribute keorsene oil meant for public distribution system unless they are possessed of requisite statutory 'authorisation' in their favour granted under the Control Order.
13. Subject to the said observations, the Writ Petition is allowed to the extent indicated above. No Costs.